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Print Intro and Chapter 1


School Law Handbook

Chapter 1: Board Meetings

Agendas
Amending the Agenda
Providing Copies of the Agenda
Conflict of Interest
What a Board Member with a Conflict Should Do
Legal Definition of a Conflict
Duty to Declare a Conflict
Advisory Opinions
Contracting with the School District
Participation in Negotiations
Penalty for Violations
July Organizational Meeting
Election of Officers
Scheduling Board Meetings
Other Appointments and Actions
Official Newspaper
Kansas Open Meetings Act
Purpose
What Constitutes a Meeting
Quasi-judicial Capacity
Social or Informal Gatherings
Meeting with State Employees
Meetings Initiated by Outside Groups
Retreats or Study Sessions
Conference Calls
Serial Meetings
Written Memoranda
Committee Meetings
Meetings for Negotiations
Notice
Recording Meetings
Meeting Out of District
Meetings to Discuss Consolidation
Executive Session
Nonelected Personnel
Attorney-Client Privilege
Attendance at Executive Session
Confidentiality of Executive Session
Penalties
Enforcement
Consent Judgment
Investigations
Consent Orders and Findings of Violation

Agendas

Q: Are we required to have an agenda for board meetings?

A: No. The law does not require a board to have an agenda for a meeting, but if an agenda is prepared, it must be made available to the public.

Amending the Agenda

Q: Once an agenda for a regular meeting is printed can the agenda be amended?

A: Generally, yes. The board can amend the agenda, so long as it is not intentionally leaving items off the agenda to deceive the public. This would potentially result in a violation of the Kansas Open Meetings Act. In Klein v. Johnson County Bd. Of County Commissioners, 2003 WL 221760 (Kan. App. 2003), the court found the failure to include a planned topic of discussion on the agenda violated KOMA.

Q: When can the agenda be amended?

A: Unless otherwise limited by board policy, an agenda may be amended at any time during a meeting. To the extent possible, it is preferable to amend the agenda at the beginning of the meeting.

Q: May we amend the agenda of a special meeting?

A: No. A special meeting must be called for a specific purpose; the agenda should not be amended.

Providing Copies of the Agenda

Q: Our board will hold a special meeting in three days. Must we provide copies of the agenda and supporting documents with the notice?

A: No. While board members are entitled to written notice of the time, place, and purpose of a special meeting, only notice of the time and place of the meeting must be given to other persons who have requested notice; a copy of the agenda and supporting documents need not be attached. However, pursuant to the Kansas Open Records Act, a copy of the agenda and supporting documents which are not exempt from the open records requirement, must be provided upon request.

Conflict of Interest

What a Board Member with a Conflict Should Do

Q: If I have a conflict of interest and do not wish to vote, what should I do?

A: Leave the meeting until voting on the issue has concluded. Because
K.S.A. 72-1138 requires an abstaining vote to count as a “no” vote, this is the recommended procedure a board member should follow when there is a conflict of interest.

Legal Definition of a Conflict

Q: When does a board member have a conflict of interest?

A: Legally a board member has a conflict of interest only if the board member has a substantial interest in a contract. There may be other issues in which there is an ethical or moral conflict, but there are no legal restrictions on a board member's actions on these issues.

Q: What is a substantial interest in a contract?

A: K.S.A. 75-4301a defines “substantial interest.” An individual is deemed to have a substantial interest in the following situations:

  • If an individual or his or her spouse, either individually or collectively, has owned within the preceding 12 months a legal or equitable interest exceeding $5,000 or 5 percent of any business, whichever is less;
  • If an individual or his or her spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses;
  • If an individual or his or her spouse, either individually or collectively, has received in the preceding 12 months, without reasonable and valuable consideration, goods or services having an aggregate value of $500 or more from a business or combination of businesses;
  • If an individual or his or her spouse holds the position of officer, director, associate, partner or proprietor of any business, other than certain 501(c) tax exempt organizations, irrespective of the amount of compensation received by the individual or individual’s spouse; and
  • If an individual or his or her spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial interest in any client or customer who pays fees or commissions to the business from which fees or commissions the individual or his or her spouse, either individually or collectively, received an aggregate of $2,000 or more in the preceding calendar year.
Q: How is a business defined?

A: “Business” means any corporation, association, partnership, proprietorship, trust, joint venture, and every other business interest, including ownership or use of land for income.

Duty to Declare a Conflict

Q: Can the board require that a board member declare a conflict of interest?

A: No. The duty is on the board member to declare the conflict.

Q: Can I, as a board member, do anything if I believe a board member has a conflict and refuses to do anything?

A: You may talk with the board member about your concerns.

Advisory Opinions

Q: Can we get an opinion from anyone on whether certain actions would create a conflict?

A: You may seek an opinion from the Kansas Governmental Ethics Commission. A request for an advisory opinion should be sent to the Secretary of State who in turn notifies the Commission. K.S.A. 75-4303a.

Contracting with the School District

Q: Does this mean a board member can never contract with the school district?

A: No. It simply means the board member cannot participate as a board member in the making of the contract. A local governmental officer or employee does not make or participate in the making of a contract if the officer or employee abstains from any action in regard to the contract. Further, the prohibition does not apply to:

  • Contracts let after competitive bidding has been advertised for by published notice; and
  • Contracts for property or services for which the price or rate is fixed by law. K.S.A. 75-4304.

Penalty for Violations

Q: What happens if a board member violates the conflict of interest law?

A: If convicted, the board member would forfeit his or her board office. K.S.A. 75-4304(e).

Participation in Negotiations

Q: Can a board member participate in negotiations if his or her spouse is a teacher in the same school district?

A: Yes. This question was posed to the Kansas Governmental Ethics Commission in Opinion No. 1991-17. The Commission noted that the law prohibits a school board member from participating in the making of a contract with any person or business by which the board member is employed or in whose business the board member has a substantial interest. Because a governmental unit is not included in the definition of “business” under the conflict of interest law that applies to local units of government, the Commission concluded a board member is not precluded from serving on the board’s negotiating team in this circumstance.

July Organizational Meeting

Election of Officers

Q: When do we elect our president and vice president?

A: Annually at the July organizational meeting. K.S.A. 72-1133.

Scheduling Board Meetings

Q: When do we set our board meeting dates, times and locations?

A: Annually at the July organizational meeting. K.S.A. 72-1138.

Q: Are we required to have a certain number of meetings of the board?

A: You must meet at least monthly. Beyond that there are no further requirements.

Other Appointments and Actions

Q: Are there other actions we should take at the July organizational meeting?

A: Yes. You should do the following:

  • Appoint a clerk and treasurer;
  • Appoint a KPERS representative, a food service program representative, a deputy clerk, and a school attorney;
  • Appoint an impact aid representative if your district receives impact aid;
  • Appoint a hearing officer for free and reduced price meal application appeals;
  • Appoint representatives to any service center boards or AVTS boards, if necessary;
  • Designate the individuals in each building responsible for reporting children truant pursuant to K.S.A. 72-3121;
  • Designate a coordinator for homeless children duties;
  • Designate compliance coordinator(s) for federal anti-discrimination laws including Title VI, Title VII, Title IX, ADA and Section 504;
  • Designate the official depository for school district funds and review bank signatures on file, K.S.A. 9-1401;
  • Adopt the annual waiver of requirements for generally accepted accounting principles, K.S.A. 75-1120a;
  • Adopt an early payment request policy and designate an employee authorized to make such payments, K.S.A. 12-105b(e);
  • Establish student fees, K.S.A. 72-3353, student meal prices, textbook rental fees, K.S.A. 72-3346 and the reimbursement rate for mileage, K.S.A. 75-3203;
  • Adopt a school calendar and designate inclement weather make-up days if your district wants them, K.S.A. 72-3115;
  • Adopt a resolution to establish petty cash accounts and petty cash limits, K.S.A. 72-1177;
  • Adopt guidelines for activity funds and gate receipts, K.S.A. 72-1178;
  • Rescind all policy actions from the previous year and adopt current written policies as those that will govern for the school year;
  • Approve district, school and/or athletic handbooks;
  • Select the official district newspaper for publication of official notices, K.S.A. 64-101.
Q: Are there other things we should do at the July meeting?

A: The Kansas State Department of Education suggests you should also:

  • Review units of credit offered at each attendance center to make sure each center is in compliance with accreditation rules and regulations;
  • Review the preliminary budget;
  • Review records in storage for possible destruction of old records pursuant to K.S.A. 72-1629;
  • Review the district’s insurance policies, including types of coverage, names of companies, and schedule for renewal;
  • Review the capital outlay mill levy authority to see if renewal is needed;
  • Review the immunization policy to ensure it is in compliance with statute. K.S.A. 72-6261.

Official Newspaper

Q: Can we select any newspaper to be our official newspaper?

A: No. The newspaper must be one having general circulation in the district. This is defined as one that:

  • Is published at least weekly 50 times each year;
  • Is entered at the post office in the school district of publication as periodical class mail matter;
  • Has general paid circulation on a daily, weekly, monthly or yearly basis in the school district;
  • Is not a trade, religious or fraternal publication; and
  • Is published in the school district publishing the official publication or notice. K.S.A. 64-101.
Q: We have a new weekly newspaper just starting up in our town. May they be our official newspaper?

A: No. The newspaper must have been published at least weekly 50 times per year for one year before you can consider it a newspaper having general circulation in the district. K.S.A. 64-101(c)(1).

Q: No newspaper is published in our district. What should we do?

A: If there is no newspaper published in the school district, you may use a newspaper which is published in Kansas and has general circulation in the school district. K.S.A. 64-101(c)(4).

Kansas Open Meetings Act

Purpose

Q: What is the purpose of the Kansas Open Meetings Act?

A: Its purpose is to ensure that the proceedings of public governing bodies are open to the public. K.S.A. 75-4317. The law requires a board of education to:

  • Conduct its affairs and transact its business in meetings which are open to the public;
  • Refrain from taking any binding action by secret ballot;
  • Provide notice of the date, time and place of any regular or special meeting to anyone requesting such notice;
  • Make the agenda, if one is prepared, for any meeting available to anyone requesting the agenda;
  • Recess into executive session only for those reasons stated in the statute.

What Constitutes a Meeting

Q: What is a meeting for KOMA purposes?

A: A meeting is defined as “any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a public body or agency subject to this act for the purpose of discussing the business or affairs of the public body or agency.” K.S.A. 75-4317a.

To be a meeting subject to KOMA’s requirements, the gathering must meet three conditions:

  • It must include four or more board members. Because by law school boards consist of seven members, four members constitute a majority;
  • It must be for the purpose of discussing school board business;
  • It must involve interactive communication.

Quasi-judicial Capacity

Q: Are there any exceptions?

A: One exception to this definition occurs when the board sits in a quasi-judicial capacity (e.g., when a student appeals a long-term suspension or an expulsion to the board). When deliberating on matters relating to a decision involving quasi-judicial functions, the board is not required to have an open meeting. However, any vote taken as a result must occur in open session. K.S.A.75-4318(g)(1).

Social or Informal Gatherings

Q: What about social gatherings?

A: Generally, there will be no meeting under KOMA if four or more board members happen to be at the same social gathering, be it a wedding, a concert, a holiday party or a golf tournament. On these occasions, even though four or more board members may be present, the purpose of the gathering is not discussing school business. On the other hand, if the four or more board members, once at the otherwise innocuous social event, retreat to a quiet corner to discuss school business, a violation has arguably occurred. To avoid a violation, board members should refrain from discussing school business with other board members at social gatherings.

Q: What about informal gatherings of the board?

A: Although board members may comply with KOMA for the formal board meeting, violations may occur if four or more board members informally gather and discuss business before, after, or during recesses of the meeting. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416 (1978).

Meeting with State Employees

Q: Four members of the board of education desire to drive to Topeka to visit with KSDE personnel. Will this violate the Kansas Open Meetings Act?

A: In order to avoid a violation of the KOMA, the board of education should provide notice of the meeting to all persons who have requested notice of their meetings. Further, board members should not discuss board business while traveling. If three or fewer members of the board were meeting with the state employee, the potential for a violation would be eliminated.

Meetings Initiated by Outside Groups

Q: What if outside groups initiate the meeting?

A: When outside groups–the Chamber of Commerce, the PTO, the local NEA, or others–request that four or more board members attend one of their meetings for the purpose of discussing school issues, the gathering is a meeting of the board for the purposes of KOMA. Notice of the meeting should be given to anyone who has requested notice under KOMA. The meeting does not need to be treated as a board meeting in other respects (i.e., the clerk does not need to take minutes).

Retreats or Study Sessions

Q: Are retreats or study sessions of the board, where no action will be taken, meetings for KOMA purposes?

A: Yes. Frequently boards of education decide to have retreats or study sessions for setting goals and future planning. At these sessions, discussion is informal and no votes are taken. Regardless of the formality or informality of the session, it is a meeting at which the affairs of the school district are discussed and therefore is a meeting which must be open to the public under the Act.

Conference Calls

Q: What about conference calls with four or more board members?

A: Telephone calls among four or more board members who discuss school business are meetings subject to KOMA.

Serial Meetings

Q: As a board member, may I call four or more other board members, one at a time, to discuss a particular issue?

A: It depends. Serial meetings are subject to KOMA’s openness requirement, but only if:

  • They collectively involve a majority of the membership of the board;
  • They share a common topic of discussion concerning the business affairs of the school board; and
  • They are intended by any or all of the participants to reach agreement on a matter that would require binding action to be taken by school board. K.S.A. 75-4318(f).
Q: For serial meetings, does the conversation have to be contemporaneous?

A: No. Just interactive.

Q: What if a parent talks to four or more of us about the same issue?

A: If a third party, such as a parent or a newspaper reporter, communicates with four or more board members in a series of communications about the same issue, KOMA is not violated, unless the third party is acting at the request of a board member.

Q: Can four or more of us talk about adding items to the agenda?

A: According to the Attorney General, discussion of purely procedural issues, such as adjustments in the agenda, even if they involve more than a majority of members of the board, are not the type of topics contemplated for KOMA coverage. Such conversations do not violate KOMA unless they lead to discussion of the substantive issues involved. In other words, if a board member asks the board president to add an item to the agenda, but only if there will be enough votes to pass the item, and the board president then calls various other members to determine how they would vote on the issue, a violation occurs.

Q: Can the superintendent or another staff member brief board members on an issue without violating KOMA?

A: Yes. A staff member can brief all board members on an issue and elicit their comments and concerns on the issue. The staff member cannot, however, discuss one board member’s concerns and comments with another board member in a way that makes a majority of the membership aware of and able to respond to each other’s concerns outside of the parameters of an open public meeting.

Q: What about a “chat room” for board members on our computer system?

A: Interactive electronic communication between four or more board members in this manner would constitute a meeting.

Written Memoranda

Q: What about written memoranda?

A: Although KOMA does not prohibit the exchange of written materials, it is likely that the use of written documents to prevent discussion of an issue at a public meeting would be viewed unfavorably by those who enforce KOMA.

Committee Meetings

Q: Are meetings of committees of the board subject to KOMA?

A: Yes. Because the school board is a taxing subdivision of the state which receives public funds, any body subordinate to the board, whether or not it receives public funds, is automatically covered by KOMA. K.S.A. 75-4318(a).

Meetings for Negotiations

Q: Are negotiations meetings subject to KOMA?

A: Generally, yes. The Kansas Professional Negotiations Act provides that meetings, conferences, consultations and discussions between the teachers’ organization and the board, or between their respective negotiating teams, during the course of professional negotiations are subject to KOMA. Hearings before the Secretary of Human Resources to determine the existence of an impasse are also meetings which must be open to the public. Certain meetings held in connection with the negotiation process, however, are specifically exempt from KOMA’s provisions:

  • Meetings, conferences, consultations and discussions held by the secretary for investigation of the question of the existence of impasse;
  • Meetings, conferences, consultations and discussions held in the course of and in connection with mediation and fact-finding; or
  • The meeting required between the parties after the fact-finding report is submitted to the parties. K.S.A. 72-2228(c).

Notice

Q: In what form must notice be given under KOMA?

A: The notice need not be in any particular form, but it must be personal notice. K.S.A. 75-4318(b). Contrary to popular belief, publishing notice of meetings in the local newspaper or having the time of meetings announced on a local radio station does not fulfill the notice requirements. To comply with KOMA, written notice may be mailed directly to the person requesting notice or oral notice may be given either in person or by telephone. Providing a single notice containing the list of all meetings suffices under KOMA, but the board still must provide additional notice for any meetings not included on the original list.

Q: How long is the request for notice effective?

A: Once notice is requested, the request continues in effect until it is withdrawn. The school board, at its discretion, may require that the request for notice be renewed at the beginning of each fiscal year.

Q: Can notice be discontinued?

A: Yes. However, before discontinuing notice, the school board must notify the requester that notice will be discontinued unless the person submits a new request. K.S.A. 75-4318(b)(3).

Q: Who has a duty to see that requesters get notice?

A: While the task of notification generally falls to the clerk of the board or the school district’s secretarial staff, the statutory duty to furnish notice rests with the board president or other person calling the meeting. K.S.A. 75-4318(c).

Q: Are there time restrictions on giving notice?

A: Nothing in the statutes requires that notice to requesters be given within a specific period of time. In general, the time at which notice should be given is a question of reasonableness. If the board attempts to provide notice in a reasonable manner, it substantially complies with KOMA. If, on the other hand, the board consistently gives notice five minutes before the meeting begins, a violation might be found by those charged with enforcement of the Act. If there is not time to mail written notice and a requester cannot be reached by telephone or in person, all attempts to notify the requester should be documented and maintained in a file.

Q: Must we send agendas and supporting materials to KOMA requesters?

A: No. Nothing in Kansas law requires a board of education to prepare or publish an agenda for its meetings, but in practice, most boards do. If an agenda is prepared, under KOMA it must be “made available” prior to the meeting, to any person requesting it. K.S.A. 75-4318(d). The law does not require that the agenda be sent to requesters; posting the agenda in the central office in a place   where persons who wish to see the agenda can read it or making the agenda available at other public places fulfills the requirements of the law.

An agenda is a public record. Any person may request access to or a copy of the agenda under the Kansas Open Records Act (KORA), K.S.A. 45-215, et seq. The school must comply with the request as soon as possible and may charge a reasonable fee for copying pursuant to their open records policy.

The same rules apply to materials distributed to board members with or in addition to the agenda. Some materials distributed to board members may indeed be public records. However, other materials may be exempted. Consult the statute, or the questions dealing with KORA in the “School Districts” chapter of this Handbook to determine which records are exempt from KORA requirements.

Recording Meetings

Q: Do members of the public have a right to record our meetings?

A: If anyone wants to record the meeting, KOMA requires that “the use of cameras, photographic lights and recording devices shall not be prohibited.” K.S.A. 75-4318(e). The option to record applies only to open meetings. There is no right to record executive sessions.

Q: Do we have any control over how recording devices are used?

A: Yes. The board may design reasonable rules for the use of these devices to ensure the orderly conduct of the meeting.

Meeting Out of District

Q: Can we hold a meeting out of the district?

A: While KOMA places no requirements on meeting locations, if a meeting is held in a place which is virtually inaccessible to most patrons, it is likely the courts would conclude that the choice of meeting location was designed to subvert KOMA and that a violation of the Act had occurred. Boards should attempt to hold meetings in a place that is accessible to patrons.

Meetings to Discuss Consolidation

Q: Are there any special rules for conversations about consolidation of school districts?

A: Yes. Boards considering consolidation are authorized to hold meetings to discuss and vote on issues related to consolidation within the boundaries of any of the districts involved. K.S.A. 72-708.

Executive Session

Q: When can we go into executive session?

A: Although KOMA promotes openness and requires that all formal action by a board of education be taken in open session, the Act does allow closed or executive sessions in which the board may discuss matters for which there are statutorily prescribed justifications. In each case the discussion in executive session is allowed because the privacy rights of individuals deserve protection, or because the public interest is better served by not requiring discussion of the topic in open session.

Whether to discuss an item in executive session rests with the discretion of the board. Under the statute, a board may recess into executive session for discussion using the following justifications:

  • To discuss personnel matters of non-elected personnel;
  • For consultation with an attorney for the board which would be deemed privileged in the attorney-client relationship;
  • To discuss matters relating to employer-employee negotiations;
  • To discuss confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts and individual proprietorships;
  • To discuss matters relating to actions adversely or favorably affecting a student;
  • For preliminary discussions relating to the acquisition of real property; or
  • To discuss matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. K.S.A. 75-4319(b).

Additional justifications for going into executive session listed in the statute apply only to specifically designated boards, not boards of education.

Q: Can we vote on issues in executive session?

A: Under the Kansas Open Meetings Act, any binding action taken by the board must be done in open session at an open meeting. K.S.A. 75-4318(a). You may reach consensus in executive session, but you may not vote or take binding action.

Q: Can our board hold an executive session without having a regular or special board meeting?

A: No. The board must be in open session before and after the executive session.

Nonelected Personnel

Q: May we discuss personnel policies in executive session?

A: Generally, not. The personnel exception applies only to discussion of specific individuals to protect their privacy rights. Discussion of policies for personnel in general should occur in open session.

Attorney-Client Privilege

Q: May we discuss correspondence from our attorney in executive session under the second exception?

A: Not unless the attorney is present.

Q: Does the attorney have to be physically present?

A: No. The attorney could be “present” by telephone or other means of interactive communication.

Attendance at Executive Session

Q: Who has a right to be in an executive session?

A: A board member, and only a board member, has a right to attend an executive session. Board members cannot vote to exclude other board members from an executive session.

Q: May we invite others into executive session?

A: The board may invite others to attend the executive session, but only if those invited will provide information or participate in its deliberations. Persons other than board members cannot be invited to attend the session simply as observers.

Q: Does the superintendent have a right to be in executive session with the board?

A: No. The superintendent may be invited into executive session with the board if he or she provides the board with information or recommendations. However, the superintendent has no right to be in executive session unless the board requests it.

Q: Does the clerk have a right to be in executive session with the board?

A: No. The clerk will generally be excluded from executive session but must be present to record the motion for going into executive session and the time at which the board reconvenes in open session. The clerk may be invited into executive session to provide information to the board.

Q: Can the board invite newly elected, but not yet serving, board members into executive session for the purpose of observing executive session?

A: Generally, not. Unless the newly elected board members are there for a participatory purpose, not merely observers to see how executive sessions work. They should not participate in executive sessions generally because they have no duty to keep executive session discussions confidential and have no immunity from liability for things they might say.

Confidentiality of Executive Session

Q: Should board members keep information discussed in executive session confidential?

A: Boards of education recess into executive session to protect either the public interest or the privacy interest of a particular individual. A board member who publicizes the matter addressed in executive session violates the public trust.

In matters where individual privacy rights are involved, discussion outside of executive session may result in the violation of an individual’s privacy right by the individual board member making the statements. In other words, by discussing these matters outside of the executive session, a board member may subject himself to being sued as an individual and have personal liability. The immunity which protects board members from liability for things said in executive session of the board meeting would not apply if statements are made outside of the executive session.

Q: May a board member divulge what was discussed in executive session at a due process hearing or in court?

A: Maintaining the confidentiality of an executive session should not be confused with any evidentiary privilege. The fact that the board discusses an item in executive session does not mean the substance of that conversation cannot be revealed under subpoena in hearings or court proceedings.

Penalties

Q: What are the penalties for violating KOMA?

A: Substantial civil penalties of up to $500 per violation may be ordered against individual board members. Further, any action taken by a board in a meeting which is not in substantial compliance with the requirements of the Act may be voided in an action brought by the county attorney or attorney general within 21 days of the meeting. The district court of the county in which the meeting occurs also has broad powers to issue injunctions and other equitable relief to achieve compliance with the Act. A violation of KOMA is grounds for recall of a board member under the recall statutes, or ouster from office. K.S.A. 75-4320.

Q: Will the school district indemnify me for penalties if I violate KOMA?

A: No. The liability for penalties is personal liability. The school district can neither pay the penalties nor indemnify board members for these costs.

Enforcement

Q: Who may seek enforcement of KOMA?

A: Any person, not just the attorney general or county attorney, may apply to the district court for enforcement of the Act. K.S.A. 75-4320a. However, only the Attorney General or county attorney may seek the imposition of civil penalties or the voidance of board action. K.S.A. 75-4320.

Q: How are complaints of KOMA violations submitted to the Attorney General?

A: They must be submitted on a form developed by the Attorney General. The person bringing the complaint must set forth the facts the person believes constitute a violation of KOMA and attest to the facts under penalty of perjury. K.S.A. 75-4320e.

Q: What actions may the court take in a KOMA action?

A: The district court has authority to enforce KOMA by injunction, mandamus, declaratory judgment or other appropriate order. K.S.A. 75-4320a(a). The attorney general or county or district attorney may also resolve the matter by accepting a consent judgment, which must be approved by the district court. K.S.A. 75-4320f.

Q: Who bears the burden of proof in a KOMA action?

A: The burden of proof is on the school board. K.S.A. 75-4320a(b).

Q: Who pays the court costs for a KOMA action?

A: The district court may require the school district to pay the court costs, if the court finds the KOMA was violated. These costs are assessed against the board, not individual board members. Conversely, if the court finds that the action brought by an individual was frivolous, the court may require the person seeking enforcement to pay the court costs. K.S.A. 75-4320a(c) and (d).

Consent Judgment

Q: What remedies are available if the Attorney General or county or district attorney seeks a consent judgment?

A: A consent judgment may contain any remedy available to the district court except:

  • An award of reasonable expenses;
  • Investigation costs; and
  • Attorney fees.

Investigations

Q: Who has authority to investigate alleged violations of KOMA?

A: The attorney general or county or district attorney has broad power to investigate alleged violations of both KOMA and KORA. K.S.A. 75-4320b. These powers include authority to:

  • Subpoena witnesses, evidence, documents or other material;
  • Take testimony under oath;
  • Examine or cause to be examined any documentary material of whatever nature relevant to the alleged violation;
  • Require attendance during the examination of documentary material and take testimony under oath or acknowledgement with respect to documentary material; and
  • Serve interrogatories; and
  • Administer oaths and affirmations. K.S.A. 75-4320b(a).
Q: In the investigation of an alleged violation, what if we fail to file a response to a request for information, respond to interrogatories or obey a subpoena?

A: The Attorney General or county or district attorney may ask the district court to issue an order requiring a response or compliance or grant such other relief as may be required. K.S.A. 75-4320b(c).

Consent Orders and Findings of Violation
Q: If the Attorney General finds we have violated KOMA, will it always result in court action, or are there other options?

A: Prior to filing an action in court, the Attorney General may either enter into a consent order with the school district or issue a finding of violation to the school district. K.S.A. 75-4320d.

Q: What might the consent order contain?

A: It may contain admissions of fact and any or all of the following:

  • Mandated training approved by the attorney general concerning the requirements of KOMA;
  • Imposition of a civil penalty in an amount not to exceed $250 for each violation; and
  • An agreement that the school district will comply with the requirements of KOMA; and
  • The consent order must be signed by the superintendent, any officer found to have violated KOMA, and any other person required by the attorney general. K.S.A. 75-4320d(a)(1).
Q: What might the finding of violation contain?

A: If the attorney general issues a finding of violation to school district, it may contain findings of fact and conclusions of law and require the public body or agency to do any or all of the following:

  • Cease and desist from further violation;
  • Comply with KOMA;
  • Complete training approved by the attorney general concerning the requirements of KOMA; and
  • Pay a civil penalty in an amount not to exceed $500 for each violation. K.S.A. 75-4320d(a)(2).
Q: How will the Attorney General know if we have done the things required in a consent order or finding of violation?

A: The Attorney General may require submission of proof that the requirements have been satisfied. K.S.A. 75-4320d(b).

Q: What if the district does not comply with the consent order or finding of violation?

A: The Attorney General can apply to the district court to enforce the order. However, the Attorney General must first demand compliance of the school district and afford the district a reasonable opportunity to cure its violation. K.S.A. 75-4320d(c)(1).

Q: What can the court do in this type of enforcement action?

A: Unless the court finds the Attorney General abused his discretion in entering into the consent order or issuing the finding of violation, the court will enter an order that:

  • Enjoins the school district to comply with the consent order or finding of violation;
  • Imposes a civil penalty in an amount not less than the amount ordered by the attorney general, nor more than $500 for each violation;
  • Requires the school district to pay the attorney general's court costs and costs incurred in investigating the violation; and
  • Provides for any other remedy authorized by KOMA that the court deems appropriate. K.S.A. 75-4320d(c)(3).
  • If the court finds KOMA was violated, or if the violation was not made in good faith and without a reasonable basis in fact or law, the court may also require the school district to pay the Attorney General’s reasonable attorney fees. K.S.A. 75-4320d(c)(4).
Q: How do we get a finding of violation?

A: The Attorney General must serve it on you by certified mail or like a petition in a civil lawsuit. K.S.A. 75-4320d(d).

Q: What happens with the consent orders and findings of violation?

A: The Attorney General must maintain a file of all consent orders and finding of violation and make them available for public inspection. K.S.A. 75-4320d(e). They can be accessed on the Attorney General’s website at: https://ag.ks.gov/open-government/enforcement-actions

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School Law

Chapter 2

Access to Information
Academic Achievement Information
Student Records
Records & Privacy Rights: FERPA
Personnel Records
Employment of Board Members
Teachers as Board Members
Other Employees as Board Members
Community College Trustees
Nepotism
Expenses
Oath of Office
Officers & Duties
Term of Office
Presiding at Meetings
Recall & Ouster
Recall
Ouster
Residency & Eligibility
Moving Outside the School District
Vacancies
Publishing Notice of Vacancy
Length of Appointment
Timeline for Filling a Vacancy
When a Majority of the Board Resigns

Access to Information

Academic Achievement Information

Q: How do we get information about the educational performance of students in our district?

A: The academic achievement testing program of the district should be designed to assess the educational performance of students in the district. K.S.A: 72-3219 requires a board to have an annual report on the academic achievement testing program of the district prepared and presented at a regular board meeting. The board may specify the form of the report and the manner in which it will be presented.

Student Records

Q: Do individual board members have a right to look at individual student records?

A: No. Not without the consent of the student (if the student is 18) or of the parents of the student (if the student is under 18). See the Section on student records in the Student section of this Handbook.

Records & Privacy Rights: FERPA

Q: Does the board have a right to look at individual student records?

A: In instances where the board has a legitimate educational interest, personally identifiable student records may be disclosed to the board in executive session without the consent of the student or parents, but only if board policy on the issue of student records allows for disclosure of records to school officials who have a legitimate educational interest and sets forth the criteria for determining which parties are school officials and what constitutes a legitimate educational interest. If policy does not allow for this, consent to disclosure would be required. 34 C.F.R. §§ 99.6 and 99.31.

Personnel Records

Q: Does an individual member of the school board have a right to examine a teacher’s evaluation?

A: No. K.S.A: 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher evaluations may be released to the board as a whole and may be reviewed and discussed by the board as a whole in executive session, but an individual board member has no greater rights than any other citizen to access a teacher evaluation.

Q: What if the teacher gives the evaluation to a board member?

A: The teacher may disclose the evaluation document to anyone he or she chooses, including an individual board member. The law is designed to protect the teacher’s right to privacy.

Q: What about other documents in a personnel file? Does an individual board member have access to this information?

A: Again, a person’s status as a board member does not afford that person greater rights than any other citizen. The Kansas Open Records Act indicates that information in a personnel file is not required to be disclosed except for the following information: name, position, length of service in the district, salary and the individual contract. An individual board member would have access to this information, but not generally access to other information in the personnel file.

Employment of Board Members

Teachers as Board Members

Q: Is a teacher prohibited from serving on a school board?

A: Applying common law principles of incompatibility of office, in U.S.D. No. 501 v. Baker, 269 Kan. 239(2000), the Kansas Supreme Court held a teacher was disqualified from serving on the school board in the district that employed her.

Q: Is a teacher prohibited from serving on any school board?

A: No. A teacher is only prohibited from serving on the board in the district where he or she is employed. If the teacher works in one district but resides in a second district, the teacher can be a school board member in the second district.

Q: What about a retired teacher?

A: If the teacher is no longer an employee of the district, the teacher can be a board member in the district. It is serving in the dual capacity of employer/employee at the same time which creates the common law incompatibility of office.

Q: Does the holding apply to substitute teachers as well as full-time teachers?

A: Yes. The holding applies to any teacher in the school district.

Q: Does the holding prohibit a teacher from running for the school board?

A: No. A teacher can run for school board, and, if elected could serve on the board if he or she resigned from his or her employment before accepting the board position.

Other Employees as Board Members

Q: Does the holding disqualify other employees from serving on the school board?

A: Not directly. Although common law principles of incompatibility of office apply equally in this situation, there is a question whether the Kansas legislature has authorized classified employees to serve on boards by not specifically excluding them from board service in K.S.A: 72-1137. Until this question is answered by the court or the legislature, a board who allows a classified employee to serve on the board runs a risk that a court may later find such employees were disqualified from board service.

Board action involving the disqualified member might be voidable if challenged. Further, it is unlikely the school district’s insurance policies would cover actions by a disqualified member.  Because these employees are generally employees- at-will, the board can easily avoid these potential consequences by terminating existing employment or not offering further employment to board members. Alternatively, these individuals could resign from the board and retain their employment.

Q: Are any employees prohibited by statute from serving on the board of education?

A: Superintendents, assistant superintendents, principals, other supervisors, the clerk and the treasurer are statutorily prohibited from serving on the board. K.S.A: 72-1134, 72-1136 and 72-1136.

Community College Trustees

Q: May a community college trustee be employed by the college?

A: No. K.S.A: 71-1403(d) provides: “No member of the board of trustees of a community college shall be an employee of the community college.” The Attorney General has interpreted the term employee to include those persons whose service to the community college is subject to the control and direction of the community college, provided such control and direction includes directing the manner in which the services are performed, regardless whether the person receives compensation from the community college. This interpretation was based on the premise the purpose of the statute is to prevent situations in which a person as a member of the board of trustees of a community college exercises authority over employment matters regarding the person as an employee of the community college.

Nepotism

Q: May a board member’s family be employed by the district?

A: Nepotism is not forbidden by law but it may be regulated by board policy.

Q: Are nepotism laws or policies generally legal?

A: Yes. However, it is questionable if they can be applied retroactively to require an employee to be fired.

Expenses

Q: May board members be reimbursed for expenses?

A: Yes. board members may be reimbursed for their necessary expenses incurred in the performance of their official duties. K.S.A: 72-1140

Q: Most of our board members take their spouses with them to conventions and other meetings. May board members be reimbursed for expenses incurred by their spouses if their spouses accompany them on board business meetings?

A: No.

Q: Are there tax consequences for board members if they are reimbursed for expenses?

A: There may be. board members should check with their tax attorney if they have questions about specific reimbursements.

Oath of Office

Q: Must all elected board members take an oath of office?

A: Yes. You qualify for office by filing the oath of office. K.S.A: 25-2023

Q: Is there a specific oath that must be used?

A: Yes. The oath is set forth in K.S.A: 54-106 which provides:
“I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ___________. So help me God.”

Q: When must the oath of office be filed?

A: You must file an oath of office not later than 10 days after the election or five days after the issuance of your certificate of election, whichever is later. K.S.A: 25-2023

Q: Where is the oath filed?

A: You must file an oath of office with the county election officer. K.S.A: 25-2023

Q: Must an appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

Officers & Duties

Term of Office

Q: Can a board president or vice-president be elected to a term of longer than one year?

A: No. Board officers may run for re-election, without limit on the number of terms they may serve, but the term cannot be for longer than one year. K.S.A: 72-1133

Presiding at Meetings

Q: What are the duties of the board president?

A: To preside at meetings of the board and to perform other duties as required by law. K.S.A: 72-1133

Q: If the president is absent from a meeting, the vice-president presides. Who presides if they both are absent?

A: The remaining board members select a member to sit in the capacity of president for that meeting. K.S.A: 72-1133

Q: Who presides at the July organizational meeting before the new president is elected?

A: The board president remains board president until his or her successor is elected and should preside. If the board president is no longer on the board, the vice-president or a member selected to serve in the capacity of president should preside.

Recall & Ouster

Methods for Removing a Board Member from Office

Q: Can a majority of the school board remove another member of the board?

A: No. The means by which a board member may be removed from office are by recall petition and vote pursuant to K.S.A: 25-4318, et seq., or by ouster pursuant to K.S.A: 60-1205

Recall

Q: Who may start a petition for recall of a board member?

A: Any registered elector of the district, using the form prescribed in K.S.A: 25-4320

Q: Who may sign a recall petition?

A: Any registered elector of the election district from which the board member was elected. Depending on the voting plan the district uses, this may include the entire school district or just a member district.

Q: What constitutes grounds for recall?

A: Conviction of a felony, misconduct in office or failure to perform duties prescribed by law. K.S.A: 25-4302(a)

Q: What does misconduct in office mean?

A: A violation of law by the board member that impacts the board member’s ability to perform the official duties of the office. K.S.A: 25-4302(b)

Q: Who determines if the grounds for recall stated in the recall petition are sufficient?

A: The county or district attorney of the county where the petitions are required to be filed, in this case the home county of the school district. K.S.A: 25-4322(b) and 25-4318. In Unger v. Horn, 240 Kan. 740 (1987), the Supreme Court noted that the statute requires specificity when stating grounds for recall. For instance, a petition which alleges “misconduct in office” is insufficient, but one which alleges “violations of the Kansas Open Meetings Law,” specifying the misconduct, is sufficient.

Ouster

Q: May a board member be removed from office other than through recall?

A: Yes. A board member may be ousted from office pursuant to K.S.A: 60-1205

Q: What are the grounds for ouster?

A: A board member can be ousted from office if he or she:

  • Willfully engages in misconduct while in office;
  • Willfully neglects to perform any duty required by law;
  • Demonstrates mental impairment such that the person lacks the capacity to manage the office held; or
  • Commits any act constituting a violation of any penal statute involving moral turpitude. K.S.A: 60-1205
Q: Who can start proceedings to oust a board member from office?

A: The County Attorney or Attorney General, with or without a written complaint. K.S.A: 60-1206

Q: Is there an election on an ouster proceeding?

A: No. A petition is filed in district court by the County Attorney or District Attorney. The board member has a right to a full hearing before the court on the application for ouster. K.S.A: 60-1207

Residency & Eligibility

Moving to Another Member District in the School District

Q: One of our board members from member district #1 moved to member district #2. May he remain on the board?

A: Yes. So long as he still resides in the school district he may complete his term. If he desires to run again, however, he must run for a seat in member district #2 or for the at-large position. He cannot continue to run for the member district #1 seat if he no longer lives in that member district. K.S.A: 25-2022A

Moving Outside the School District

Q: One of our board members moved out of the school district. May she continue to serve on the board for the remainder of her term?

A: Probably not. If the board member has changed her residence, and the change is not temporary, she cannot continue to serve.

Q: If she refuses to resign, when does a vacancy occur?

A: A vacancy in the membership of the board is deemed to exist as of the date that the county election officer determines that a change of residence has occurred. Talk to the county election officer about the situation.

Q: One of our board members is getting divorced. He is looking for a place to live in the district but has rented an apartment in an adjoining district at present. He indicates this is a temporary situation and that he will move back to the district as soon as a rental property becomes available. Can he remain on the board?

A: If the board member has “established residence” outside the district, a request could be made to the county election officer to determine that a vacancy exists. The key question, however, is whether the board member has established a new residence. Residence requires two elements: (1) bodily presence at a location, and (2) an intent to remain there permanently or for an indefinite period of time. To constitute a change of residence, the board member must physically move to the new abode and intend to remain there.

In residency cases, courts examine all the surrounding circumstances, including the intent of the person to determine if residency is established. In Gleason v. Gleason, 159 Kan. 448 (1945), the court noted that when a person goes to another place for a temporary purpose and does so with the intention of returning to his fixed home, that the temporary absence does not effect a change of residence. In Perry v. Perry, 5 Kan. App.2d 636 (1981), the court concluded that one does not lose one’s residence by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new. Further, once established, a residence is presumed to continue until a new residence is established.

If a board member intends to live outside the district only until he is able to find a place to rent back in the district, it would appear that a change of residence, in the legal sense of the word, does not occur. However, because the question is one of both fact and intent, changes in any of the facts or his intent, could result in a change of residence.

Vacancies

Publishing Notice of Vacancy

Q: One of our board members resigned. How do we fill the position?

A: You may appoint a replacement. When the vacancy occurs, the board should publish notice in the newspaper that a vacancy has occurred, and that the vacancy will be filled by appointment not sooner than 15 days after the publication. K.S.A: 25-2022

Length of Appointment

Q: Can someone be appointed to fill most of a full four-year term?

A: No. If the vacancy occurs prior to May 1 of an odd numbered year, a year in which there will be a general election for board members in November, the appointee can serve only until the second Monday in January after the following general election as an appointee. In the election in November, there must be an election “to fill the unexpired term.” The appointee and any other qualified elector may run in the election. Whoever is elected takes office on the second Monday in January following the general election for a term of two years.

Interviewing Applicants

Q: Can the board interview or discuss applicants for vacant board positions in executive session?

A: No. No exception in the Kansas Open Meetings Act authorizes the board to recess to executive session to discuss applicants for board positions. An exception exists with respect to non-elected personnel, but board members, even those who are appointed, are not non-elected personnel.

Q: May we ask applicants not to sit in on interviews of other applicants for the vacant board positions?

A: You may ask, but you cannot require that they absent themselves from the meeting. Like any other member of the public, an applicant for a position on the board has a right, under the Kansas Open Meetings Law, to watch the board meeting.

Timeline for Filling a Vacancy

Q: How soon after a vacancy occurs must we advertise and fill the position?

A: The law sets no timelines, but the board should act in a reasonable manner. Generally, you should try to fill vacancies as soon as possible.

Q: If a board member announces that he or she intends to resign in another month or two, can we publish the notice now and be ready to appoint someone when he or she actually resigns?

A: No. The law says you must publish notice after the vacancy occurs. Until the board member actually resigns, there is no vacancy.

When a Majority of the Board Resigns

Q: If it takes four board members to take any action, what do we do if four or more board members resign?

A: The clerk of the board must certify the vacancies to the governor. The governor then appoints as many board members as necessary to bring the total to four. Those four must appoint three others to fill the remaining vacancies, as they would fill any other vacancy on the board. In this case the statute requires the vacancies be filled within six months. K.S.A: 25-2022b

Q: Our board recently appointed a board member to fill the unexpired term of a member who resigned. Must the appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oat

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School Law

Chapter 3

Chapter 3. Discrimination Laws
Age Discrimination in Employment Act of 1967
What’s Prohibited?
Who’s Protected?
Age as a Factor in Employment Decisions
Standard of Proof
Specific Defenses to an ADEA Claim
Court Actions
Remedies
Americans with Disabilities Act of 1990
What’s Prohibited?
Major Life Activities
Substantially Limit
Qualified Individual
Essential Functions of the Position
Pre-Employment Inquiries
Reasonable Accommodation
Leave
Reassignment
Refuse to Accommodate
Public Services
Auxiliary Aids and Services
Program Accessibility
Self-Evaluation
Other Requirements
Claims under ADA
Remedies
Equal Pay Act of 1963
What’s Prohibited?
Application
Enforcement
Standard of Proof
Defenses
Court Action
Remedies
Penalties
What’s Prohibited?
Genetic Information
Genetic Tests
Genetic-Based Impairments
Health Benefits
Enforcement
Remedies
Requesting Genetic Information
Medical Examination
Wellness Programs
Warning to Employee Required
Confidentiality Required
Filing a Charge
Kansas Human Rights Commission
Complaints
Responding to the Complaint
Mediation
Investigation
Probable Cause and Conciliation
KHRC Hearing
Dismissal of a Complaint
Remedies
Posting Notice of Rights
Penalties
Age Discrimination
Section 504 of the Rehabilitation Act of 1973
What’s Prohibited?
Individual with a Disability
Major Life Activity
Qualified Individual with a Disability
Reasonable Accommodation
Protections for Students and Patrons
Enforcement
Remedies
Steps to Ensure Compliance
Title VI of the Civil Rights Act of 1964
What’s Prohibited?
Enforcement
Remedies
Steps to Comply with Title VI
Title VII of the Civil Rights Act of 1964
What’s Prohibited?
Retaliation
Disparate Treatment and Disparate Impact
Discrimination on the Basis of Sexual Preference or Gender Identity
Discrimination on the Basis of Religion
Enforcement
Remedies
Title VII: Sexual Harassment
Definition of Sexual Harassment
School District Liability for Harassment
By Supervisory Personnel
By Non-Supervisory Co-Workers or Non-Employees
Paramour Preferences
Sexual Harassment Policy Components
Corrective Action
No Application to Students
Steps to Comply with Title VII
Employee on Student Harassment
Title IX of the Education Amendments of 1972
What’s Prohibited?
Application
To Employees
To Students
Remedies
Steps to Comply with Title IX

Age Discrimination in Employment Act of 1967

What’s Prohibited?

Q. What does the ADEA prohibit?

A. ADEA prohibits discrimination on the basis of age in all aspects of the employment relationship, including compensation, terms, conditions, or privileges of employment. Hiring and promotion decisions, including decisions about allowing an employee to achieve tenure, cannot be predicated on age.

Who’s Protected?

Q. Which employees are protected by the Age Discrimination in Employment Act?

A. Employees who are 40 and older are protected from discrimination in employment on the basis of their age by the Age Discrimination in Employment Act of 1967. Applicants for employment are protected as well as actual employees.

Q. Are any employees exempt from coverage?

A. Yes. Some are exempted from coverage under ADEA. The Act does not cover a person elected to public office, a member of that person’s staff or bona fide executives or high policymakers, such as a superintendent or president of a college. See EEOC v. Board of Trustees, 723 F.2d 509 (6th Cir. 1983).

Enforcement

Q. Who enforces the ADEA?

A. When enacted, the ADEA was enforced by the Department of Labor. In 1979 enforcement functions were transferred to the Equal Employment Opportunity Commission (EEOC).

Q. What procedures are followed in investigating ADEA claims?

A. Generally, the procedures outlined for Title VII claims are followed. However, ADEA allows for concurrent rather than sequential state and federal administrative jurisdiction. A complainant may file charges concurrently with Kansas Human Rights Commission (KHRC) and EEOC.

Application to Schools

Q. Does the ADEA apply to schools?

A. The ADEA applies to private employers with 20 or more employees and to state and local governments. ADEA applies to employers, including public schools, employment agencies and labor organizations.

Age as a Factor in Employment Decisions

Q. Does the ADEA prohibit mandatory retirement at a certain age?

A. The ADEA generally prohibits establishing a mandatory retirement age for any class of employees. While an institution may establish incentives for voluntary retirement, in most cases the courts have concluded mandatory retirement based solely on age violates the ADEA. Although ADEA frowns on mandatory retirement requirements, the law does allow for bona fide employee benefit plans which may include a voluntary early retirement incentive plan consistent with the purposes of ADEA. If early retirement is offered, it must be offered to all eligible employees. The key challenge to early retirement programs is whether retirement is actually voluntary. The alternative to “voluntary” retirement cannot be such that the retirement is, in fact, coerced.

Q. Can age ever be a factor considered in employment decisions?

A. Yes. The ADEA allows age to be a consideration in employment decisions where age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer. To establish age as a lawful factor in employment decisions involving transportation employees, a school must prove:

  • The existence of a job qualification reasonably necessary to the essence of the school’s business; and
  • The school is compelled to rely on age as a proxy for safety-related considerations.
Q. Can we require bus drivers be under a certain age for safety reasons?

A. Maybe, but the courts are split on this issue. Instead of relying on age, educational institutions are well-advised to require physical examinations of drivers, along with stress tests, driving tests, and tests to assess dynamic visual acuity. The National Highway Traffic Administration’s manual recommends the following:

  • No person over the age of 65 should be hired to be a bus driver;
  • Those who reach the age of 65 while employed may be permitted to drive as long as health and operating skills permit;
  • Physical examinations for drivers over 65 should be required more frequently than for younger drivers. At least once every six months is recommended.
Q. Does granting credit on a salary schedule for prior experience violate the ADEA?

A. Granting credit on a salary schedule for prior experience does not violate the ADEA. See Wooden v. Board of Educ., 931 F.2d 376 (6th Cir. 1991).

Standard of Proof

Q. What does an individual have to show to prove a claim of age discrimination?

A. The standards of proof developed in Title VII litigation are applied to ADEA claims. For a prima facie age discrimination case, an employee must show:

  • He or she is in the protected age group;
  • He or she was unfavorably affected by an employment action;
  • At the time of the adverse action, he or she was performing his or her job at a level that met the employer’s legitimate expectations; and
  • Following the adverse employment action, he or she was replaced by someone of comparable qualifications outside the protected class.
Q. Do low ratings in an evaluation indicate an individual is not meeting the employer’s expectations?

A. Probably not. The Tenth Circuit has required only a minimal showing that performance is satisfactory to meet the prima facie burden, suggesting evidence of performance issues can be raised by the school in rebutting the prima facie case. Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991).

Q. Does the employee win if they can just establish a prima facie case of discrimination?

A. No. Once the plaintiff has established a prima facie case of age discrimination, the employer must produce evidence of a nondiscriminatory reason for the employment action. The burden then returns to the employee to show these reasons are not true, but merely a pretext for age-based discrimination. The ultimate burden of persuasion remains at all times with the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Q. What if an employee quits before any adverse action occurs? Can they bring an action under the ADEA?

A. Probably. As in other types of employment discrimination actions, the adverse employment action may be a “constructive discharge.” The standard used for determining if a constructive discharge occurred is whether a reasonable person in the employee’s position would have felt compelled to resign. Hirschfeld v. New Mexico Corrections Dep’t., 916 F.2d 572 (10th Cir. 1990). In Schartz v. Unified School Dist. No. 512, 953 F. Supp. 1208 (D. Kan. 1997), the court noted “intolerable working conditions” do not require harassment or physical discomfort but may be created where an employer makes known its desires to be rid of a particular employee. Additionally, the court noted a claim of constructive discharge may be based on the fact an employee was given a choice between retirement or termination.

Specific Defenses to an ADEA Claim

Q. Are there any specific defenses to an ADEA claim?

A. Yes. The ADEA provides several defenses found at 29 U.S.C. § 623(f). A claim for age discrimination will not succeed where:

  • Age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer;
  • The differentiation is based on reasonable factors other than age;
  • The individual is discharged or otherwise disciplined for good cause;
  • The action is taken in observation of the terms of a bona fide seniority system that is not intended to evade the purpose of ADEA. The seniority system may not require or permit the involuntary retirement of any individual because of age; or
  • The action is taken in observation of the terms of a bona fide employee benefit plan, but the employer’s contribution for an older worker must be no less than that made on behalf of a younger worker or pursuant to a voluntary early retirement incentive plan consistent with the purposes of ADEA.

Court Actions

Q. When can an action in court be brought under ADEA?

A. No civil action can be brought under ADEA until 60 days after a charge is filed with EEOC. Upon dismissal of the charge or termination of the EEOC proceedings, EEOC must notify the individual who then has 90 days in which to commence a civil action. In Kansas, an age discrimination claimant must file a complaint with KHRC and wait 60 days before filing a federal civil action. Filing of the federal action operates to stay the state administrative proceeding.

Q. Why is the EEOC sometimes a party in lawsuits involving the ADEA?

A. The EEOC may bring civil actions under ADEA. The individual’s right to bring a civil action ceases upon the commencement of an action by the EEOC. However, if the individual commences action prior to the EEOC action, the action remains viable. EEOC may either file a separate action or intervene in the individual action. ADEA claimants who litigate their individual claims in an individual action cannot obtain individual relief in subsequent EEOC actions based on the same claims.

Remedies

Q. What remedies are available under the ADEA?

A. ADEA remedies are enforced through provisions of the Fair Labor Standards Act which provide employers are liable for such legal or equitable relief as may be appropriate, “including without limitation judgments compelling employment, reinstatement or promotion.” 29 U.S.C. § 626(b). Courts, including the Tenth Circuit, have generally concluded that compensatory damages are not available under ADEA, but some courts have allowed for the recovery of compensatory damages. See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir. 1993); Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987). Liquidated or double damages may be awarded when the violation is found to be willful.

Q. When are actions considered willful?

A. An employer’s actions are willful if, “the employer...knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” TWA v. Thurston, 469 U.S. 111, 126 (1985).

Statute of Limitations

Q. What is the statute of limitations for bringing an ADEA action?

A. The statute of limitations is two years, except in cases of willful violations where it is three years.

Waiver of Rights in Settlement Agreements

Q. Can employees waive their right to bring an ADEA action as part of a settlement agreement?

A. Yes. But the waiver must be knowing and voluntary and must comply with the specific requirements in the law. 29 U.S.C. § 626(f).

Q. What requirements must the waiver meet?

A. At a minimum the waiver must:

  • Be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
  • Specifically refer to rights or claims arising under ADEA;
  • State the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • Provide the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • Advise the individual in writing to consult with an attorney prior to executing the agreement;
  • Give the individual a period of at least 21 days within which to consider the agreement;
  • Provide that for a period of at least seven days following the execution of the agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.

Americans with Disabilities Act of 1990

What’s Prohibited?

Q. What does the ADA prohibit?

A. The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of an individual’s disability in employment, public services and transportation, public accommodations and telecommunications. The expressed purpose of the Act is to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

As public entities, public school districts who receive federal funding have been prohibited from discriminating on the basis of handicap or disability for nearly 20 years under Section 504 of the Rehabilitation Act of 1973. Requirements under the ADA are strikingly similar to those under Section 504, but the ADA applies to the private, as well as the public sector.

Q. What does the ADA prohibit in terms of employment?

A. The ADA prohibits discrimination on the basis of disability against a qualified individual in application procedures, hiring, advancement, discharge, compensation, job training or other terms and conditions of employment.

Individual with a Disability

Q. Who is an individual with a disability under the ADA?

A. An individual with a disability is a person with physical or mental impairment that substantially limits major life activities, a person who has a record of having such an impairment, or a person who is regarded as having such an impairment.

Q. Are there any exclusions?

A. “Disability” does not include current illegal drug use, homosexuality, bisexuality, transvestitism, exhibitionism, gender identity disorders, sexual behavior disorders, compulsive gambling, kleptomania, minor or trivial impairments, simple physical characteristics, or environmental or cultural disadvantages.

Major Life Activities

Q. What are major life activities?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Substantially Limit

Q. When does an impairment substantially limit the ability to work?

A. When a person is substantially limited in their ability to perform the functions of the job they desire. An individual need not be precluded from performing a broad class of jobs.

Q. Are mitigating measures considered in determining if there is a substantial limitation?

A. No. The ADA Amendments of 2008 forbid consideration of mitigating measures other than eyeglasses.

Q. What about temporary conditions?

A. An impairment need not be permanent to be a disability under ADA. However, broken bones and illnesses that are temporary in duration normally will not be considered a disability for ADA purposes. The nature, severity and actual or expected duration of the disability and the resulting impact of the impairment on the individual’s ability to perform major life activities are factors which must be considered in determining if a temporary condition qualifies as a disability for ADA purposes.

Qualified Individual

Q. For employment purposes, who is a qualified individual?

A. A qualified individual is a disabled individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.

Essential Functions of the Position

Q. What are essential functions of the employment position?

A. The ADA does not define essential functions of the employment position. The regulations suggest that such functions must be determined in the context of the entire work environment and be consistent with business necessity. They must be tasks other than those which bear only a marginal relationship to the job in question. In determining essential job functions, consideration will be given to the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job.

Pre-Employment Inquiries

Q. May we ask job applicants about their disabilities?

A. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. You may ask a job applicant whether he or she has the ability to perform particular job functions.

Reasonable Accommodation

Q. What are our obligations to accommodate?

A. Under the ADA an employer must make reasonable accommodations to known physical or mental limitations of a disabled individual, unless the accommodations would impose an undue hardship on the operation of the school. Reasonable accommodation includes making existing facilities readily accessible and usable, and may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, adjustment or modifications of training materials or policies, or the provision of qualified readers or interpreters.

A. An employer is only required to accommodate a known disability. If the individual does not request an accommodation, the employer is not obligated to provide one. However, the EEOC enforcement guidance states an employer should initiate the accommodation process if the employer knows or has reason to know that an employee is disabled, is experiencing problems because of a disability, or suffers from a disability that prevents him from asking for an accommodation.

Leave

Q. Is granting leave a reasonable accommodation?

A. An allowance of time for medical care or treatment may constitute a reasonable accommodation. However, if the employee gives no indication of when and under what conditions he might return to work, an indefinite unpaid leave is not a reasonable accommodation. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th Cir. 1996).

Reassignment

Q. Is reassignment to an open position required?

A. It depends. The ADA may require an employer to reassign an employee to a vacant position where the disability precludes performing the essential functions of the current job. However, reassignment is not required if other reasonable accommodations would allow the employee to continue working in his current job. The employer is not required to create an opening where none exists. Further, the employee must be qualified to perform the essential functions of the vacant job.

Q. How do we determine an appropriate accommodation?

A. Each school should establish a procedure for determining reasonable accommodations for an employee. The process should be flexible, interactive, and include input from the employee. An accommodation must be reasonable but need not be the best accommodation.

Refuse to Accommodate

Q. May we ever refuse to accommodate?

A. Each school may refuse to accommodate if the individual is not otherwise qualified for the job, if the accommodation would eliminate an essential function of the job, or if the accommodation would impose undue hardship. The school has the burden to prove undue hardship.

Undue hardship may be shown if the needed accommodation would result in significant difficulty or excessive cost to the school. Additionally, if the employment of the individual would result in a threat to the health or safety of the employee or others and the significant risk of substantial harm cannot be avoided through a reasonable accommodation, accommodation may not be required.

Enforcement

Q. Who enforces the ADA employment provisions?

A. The employment provisions of the Act are enforced by the EEOC pursuant to Title VII of the Civil Rights Act of 1964.

Public Services

Q. What are our obligations under ADA with regard to public services?

A. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Q. What does the Act mean by public services?

A. Public services include any service, program, or benefit which you provide. In addition to educational services for students, this may include sports activities, plays, assemblies, adult education programs, board meetings, and other programs or activities.

Q. For public services, who is a qualified individual?

A. A qualified individual with a disability is one who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication or transportation barriers; or the provision of auxiliary aids and services.

Auxiliary Aids and Services

Q. What are auxiliary aids and services?

A. Auxiliary aids and services may include providing qualified interpreters, note takers, written materials or telecommunication devices for the deaf (TDDs); providing qualified readers, taped texts, audio recordings, Brailled materials; acquiring or modifying equipment and devices; and other similar services or actions. In furnishing appropriate auxiliary aids, the school must give primary consideration to the request of the individual requesting the aid. Personal devices need not be provided.

Program Accessibility

Q. What obligation do we have to make programs accessible?

A. A service, program, or activity must be operated in a manner so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities. In existing facilities this may be accomplished through redesign of equipment, reassignment of services to accessible sites, the assignment of aides, the delivery of services at alternate accessible sites, or any other method which makes services accessible. A school district is not required to make changes which would result in a fundamental alteration in the nature of the service, program or activity, make structural changes in existing facilities where other methods are effective in achieving compliance, or make changes which would result in undue financial and administrative burdens. New construction must meet federal accessibility standards.

Q. What federal accessibility standards do we follow?

A. Either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines (ADAAG). You must choose one of these two and follow it in all aspects.

Self-Evaluation

Q. Are there any reporting requirements?

A. Each school was required to complete a self-evaluation which consisted of a review of services, policies and practices and their effects on individuals with disabilities, a consideration of necessary modifications, an opportunity for interested persons to participate in the process by submitting comments shortly after ADA was enacted in 1990.

Q. Are we required to keep the self-evaluation available to the public?

A. While that may be the best practice, the law required schools to maintain the self-evaluation for only three years.

Other Requirements

Q. Must we take any other actions?

A. A school must designate a person responsible for compliance with the ADA provisions, adopt a grievance procedure for dealing with complaints under the Act, and post notice of rights under the Act.

Q. What are our obligations with regard to communications?

A. TDDs or equally effective telecommunication systems must be used to communicate with individuals with impaired hearing or speech.

Schools must post the international symbol for accessibility at each accessible entrance to buildings. Schools must provide signs at all inaccessible entrances directing users to accessible entrances or to an accessible location where they can obtain information.

Q. Do we need to do anything with our school buses under the transportation provisions?

A. No. Buses used for public transit must meet certain standards, but school buses were specifically exempted from the transportation provisions.

Claims under ADA

Q. How are claims brought under ADA?

A. ADA incorporates the Title VII administrative and judicial enforcement procedures: a disabled individual may pursue a civil action after filing a timely discrimination charge with the EEOC or KHRC.

Q. Can a person who is qualified for disability benefits under Social Security claim to be a qualified individual with a disability under the ADA?

A. Yes. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795(1999), the Supreme Court held application for and receipt of Social Security Disability Insurance benefits does not automatically stop the recipient from pursuing a claim under the ADA.

Q. Can individuals be sued under ADA?

A. The Tenth Circuit has held ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statute. Butler v. City of Prairie Village Kansas, 172 F.3d 736 (10th Cir. 1999).

Remedies

Q. What remedies are available under ADA?

A. Back pay, reinstatement, injunctive relief, and other equitable remedies are generally available. Compensatory and punitive damages may be available in cases of intentional disparate treatment. However, an employer can avoid liability for damages if it shows it made a good faith effort, in consultation with the employee, to identify and make a reasonable accommodation to a known disability. The damage caps under Title VII apply to ADA damages as well. A prevailing party is entitled to reimbursement for attorney fees and litigation expenses.

Equal Pay Act of 1963

What’s Prohibited?

Q. What does the Equal Pay Act prohibit?

A. Sex discrimination in payment of wages and other compensation by private employers, as well as by federal, state, and local governments. The Act requires equal pay in jobs substantially equal in skill, effort, and responsibility and performed under similar working conditions in the same establishment. The Equal Pay Act, which is actually a part of the Fair Labor Standards Act, prohibits an employer from maintaining wage differentials based upon sex and prohibits a labor organization from causing or attempting to cause an employer to discriminate in violation of the act. The EPA applies only to sex discrimination in the form of unequal pay for equal work. Retaliation against an employee for filing a complaint or testifying in a proceeding is prohibited.

Q. How does the EPA differ from Title VII?

A. The scope of the EPA is far more restrictive, proscribing only the payment of unequal wages while Title VII proscribes all practices which create inequality in employment opportunities due to discrimination on the basis of sex. While the EEOC and some courts have concluded that a violation of EPA is also a violation of Title VII, the courts have not always agreed. In Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989), the court noted that the burden of proof is different under the statutes. Under Title VII, the burden is on the plaintiff at all time to show discriminatory intent. The EPA does not require proof of discriminatory intent.

Application

Q. Does the EPA apply to public schools and colleges?

A. Yes. When the EPA was enacted, coverage did not extend to public schools or colleges in any form. In 1966, the EPA was amended to include employees of public schools, bringing non-certificated staff within its coverage. Additional amendments in 1972 eliminated the professional employee exemption, bringing teachers and administrators within the EPA coverage as well.

Q. Do courts look at a single building or the entire district in evaluating EPA claims?

A. For purposes of EPA application, the entire school district, not a single building, is considered the establishment. See, e.g. Brennan v. Goose Creek Consolidated Independent Sch. Dist., 519 F.2d 53 (5th Cir. 1975). At the college and university level, courts have reached differing results. See Alexander v. University of Michigan-Flint, 509 F. Supp. 627 (E.D. Mich.1980) (single campus) and EEOC v. Maricopa County Community College District, 29 FEP 383 (D. Ariz. 1982), aff’d on other grounds, 736 F.2d 510 (9th Cir. 1984) (all campuses).

Enforcement

Q. Who enforces the Equal Pay Act?

A. The EEOC is responsible for enforcement. Lawsuits may be filed by the EEOC or by the aggrieved individual. No charge need be filed with EEOC as a precondition to private suit. EEOC has authority to investigate to determine if the EPA is being violated on its own volition or at the request of a person who believes the Act is being violated. A school cannot have liability under the EPA if it relies in good faith on any written regulation, order, ruling, interpretation, practice or enforcement policy of the EEOC.

Standard of Proof

Q. What must an employee prove to show a violation of the EPA?

A. Generally, to prove a violation of the EPA an employee must show that a male and female who work in the same establishment, performing equal work are paid different wages on the basis of sex. To be considered “equal” the work performed must be “substantially equal” in skill, effort and responsibility and performed under similar working conditions.

Defenses

Q. What are an employer’s defenses?

A. In defending an action under the EPA, a school district employer may rebut those elements by showing that skill, effort or responsibility are not equal in the two positions or by showing that the work is not performed under similar working conditions. Additionally, the school district may prove that the unequal pay resulted because of a permitted exception under the law. Those exceptions include:

  • Wages paid pursuant to a seniority system;
  • Wages paid pursuant to a merit system;
  • Wages paid pursuant to a system that measures the quantity or quality of goods produced; or
  • Unequal pay based on a factor other than sex.

Court Action

Q. Can an individual bring an action in court under the EPA?

A. Yes. An employee may bring a civil action directly in any federal court. The action may be individual or on behalf of others who are similarly situated.

Q. Is exhaustion of administrative remedies required?

A. Exhaustion of administrative remedies is not required, nor is an attempt at EEOC conciliation.

Q. Can EEOC bring action on its own?

A. Yes. EEOC may bring civil actions on behalf of an employee or employees to recover unpaid wages and liquidated damages. EEOC may also seek injunctive relief for all affected employees.

Q. What is the statute of limitations for EPA actions?

A. Civil actions under the EPA must be commenced within two years of their accrual. In the case of “willful” violations, i.e., the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the EPA, civil actions may be commenced within three years of their accrual.

Remedies

Q. What are the remedies for EPA violations?

A. The EPA is part of the Fair Labor Standards Act. An employer who violates FLSA provisions is liable for unpaid wages or overtime compensation and such legal or equitable relief as may be appropriate including employment, reinstatement and promotion. 29 U.S.C. § 206(d)(3). An employee’s wage rate cannot be reduced to remedy an unlawful differential in pay. 29 U.S.C. § 206(d)(1) and 29 CFR § 1620.12. An amount equal to the amount of wages determined to be owing for lost wages or overtime compensation are available in EPA cases where the school cannot show it acted in good faith and had reasonable grounds for believing it was not violating the EPA.

Penalties

Q. Are there any penalties for employers who willfully violate the EPA?

A. Yes. A person who willfully violates the EPA is subject to a $10,000 fine and up to six months imprisonment, or both, for a second or subsequent conviction. 29 U.S.C. § 216(a).

Genetic Information Nondiscrimination Act

What’s Prohibited?

Q. What does the Genetic Information Nondiscrimination Act (GINA) prohibit?

A. GINA prohibits the use of genetic information in employment. It restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.

Genetic Information

Q. What is “genetic information”?

A. Under the law, “genetic information” includes:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Family medical history;
  • Requests for, and receipt of, genetic services by an individual or a family member; and
  • Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.

Genetic Tests

Q. What are examples of genetic tests?

A. Tests used to determine whether an individual has a certain genetic variant associated with an increased risk of acquiring a disease in the future are genetic tests. For example, a test to determine whether an individual has the genetic variants associated with a predisposition to certain types of breast cancer is a genetic test. Carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring are additional examples of genetic tests.

Q. What are some examples of tests that are not genetic tests?

A. Examples of tests that are not genetic tests include an HIV test, a cholesterol test, or a test for the presence of drugs or alcohol.

Genetic-Based Impairments

Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis?

A. No. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. However, other laws, such as the Americans with Disabilities Act, may provide protection.

Harassment and Retaliation

Q. Does GINA prohibit harassment?

A. Yes. GINA prohibits a wide range of discrimination, including harassment.

Q. Does GINA prohibit retaliation?

A. Yes. GINA includes a specific provision prohibiting employers from retaliating against employees who oppose employment practices made unlawful by GINA or who participate in an investigation, proceeding, or hearing under GINA.

Health Benefits

Q. May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?

A. No. Health benefits are part of the compensation, terms, conditions, and privileges of employment.

Enforcement

Q. Who enforces GINA?

A. The EEOC is responsible for enforcement.

Remedies

Q. What are the remedies for a violation of GINA Title II?

A. The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs. Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA. Punitive damages are not available against federal, state, or local government employers.

Requesting Genetic Information

Q. Are there any situations in which a small business may obtain genetic information without violating GINA?

A. Yes, there are six narrow exceptions to the rule that an employer may not request, require, or purchase genetic information about an applicant or employee. Those that may apply in a public school setting include:

  • Where the information is acquired inadvertently;
  • As part of health or genetic services, including wellness programs, provided on a voluntary basis;
  • In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies; and
  • When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources.

Medical Examination

Q. May an employer ask for family medical history as part of a medical examination of a job applicant or employee?

A. No. Although an employer may conduct medical examinations after making a job offer or during employment as permitted by the Americans with Disabilities Act (ADA), the examination may not include collection of family medical history. An employer must tell its health care providers not to collect genetic information as part of an employment-related medical exam, and, if it finds out that family medical histories are being collected, the employer must take measures within its control to prevent this from happening in the future.

Wellness Programs

Q. What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?

A. GINA and the final rule say that an employer may acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior written authorization that is both voluntary and knowing. Individualized genetic information can be provided to the individual receiving the services, but genetic information may only be provided to the employer in aggregate form. Further, while employers may offer certain kinds of financial inducements to encourage participation in health or genetic services, they may not offer an inducement for individuals to provide genetic information.

Warning to Employee Required

Q. What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?

A. When an employer makes a request for health-related information to support an employee’s request for reasonable accommodation under the ADA or a request for sick leave, it should warn the employee and/or health care provider not to provide genetic information. The warning may be in writing or oral. The regulations suggest language such as the following may be used:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Q. What if, even after the warning, we still get information that could be considered genetic information?

A. If this type of warning is provided, any acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.

Q. How often must the warning be provided?

A. It is best to provide the warning each time health-related information is requested.

Confidentiality Required

Q. Does GINA have rules on confidentiality?

A. Yes. An employer in possession of genetic information about applicants or employees must treat it the same way it treats medical information. It must keep the information confidential and, if in writing, apart from other personnel information in separate medical files. However, genetic information may be kept in the same file as medical information subject to the ADA.

Filing a Charge

Q. How does an employee file a charge under GINA?

A. An individual who believes that his or her employment rights have been violated on the basis of genetic information may file a “charge of discrimination” with the EEOC within 180 days from the date of the alleged violation, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of use or acquisition of genetic information or genetic testing.

Kansas Act Against Discrimination

Q. What is the Kansas Act Against Discrimination (KAAD)?

A. It is the Kansas law that prohibits discrimination on the basis of race, religion, color, sex, disability, familial status, national origin or ancestry in employment and public accommodations. K.S.A. 44-1001, et seq.

Q. To whom do the Kansas Act Against Discrimination apply?

A. Any employer who employs four or more persons, agents of employers and labor organizations, and all political subdivisions of the state, including school districts and community colleges.

Kansas Human Rights Commission

Q. Who administers the KAAD?

A. The Kansas Human Rights Commission (KHRC).

Q. Who serves on the KHRC?

A. The commission consists of seven members appointed by the governor. By law two must be representatives of industry, two must be representatives of labor, one must be licensed to practice law, one must be a representative of the real estate industry, and one is appointed at large.

Complaints

Q. How do complaints of discrimination originate with the KHRC?

A. Any person who believes that they have been discriminated against in employment or in a public accommodation may file a verified complaint with the KHRC or have an attorney file the complaint on their behalf. The commission itself or the attorney general may also file complaints.

Q. Can the complaint be lodged orally?

A. No. The complaint must be in writing and articulate a prima facie case of discrimination pursuant to recognized theories of discrimination.

Q. When must the complaint be filed?

A. Complaints must be filed within six months after the alleged act of discrimination occurs, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it must be filed within six months of the last act.

Q. If the complaint is filed with KHRC, how does the school find out about the complaint?

A. The commission serves a copy of the complaint on you within seven days.

Q. Can the person also file a complaint with EEOC for the same conduct?

A. It is not necessary. Complaints filed with the KHRC are dually filed with the federal Equal Employment Opportunity Commission unless the complainant requests only to file with KHRC. If the complaint is first filed with KHRC, it is the agency which will initiate the investigation of the complaint.

Responding to the Complaint

Q. We received a letter accompanied by a complaint and a request for information from KHRC. How should we respond?

A. When a copy of the complaint is served on the school district, it is generally accompanied by a letter requesting that certain information be provided to assist in the investigation of the complaint. Although school district personnel may respond to this request, it is recommended any such response be reviewed by your school attorney before it is sent to the KHRC.

Q. The letter asks for the evaluations of several staff members. Can we release this information to KHRC?

A. The Kansas Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq., limits the ability of the district to comply with this request. Generally, the complainant will have signed a form authorizing the release of such information to the KHRC, which will allow the district to forward the requested material on the complainant. Without such a release, however, the district should either seek a release from other employees itself or request that the KHRC subpoena the information prior to releasing the information.

Mediation

Q. The letter from KHRC asks if we want to participate in mediation. Should we do this?

A. Probably. You may be able to resolve the issues at this level.

Investigation

Q. What if mediation does not resolve the issues?

A. If the issues are not resolved through mediation, the complaint is assigned to a KHRC field investigator for complete investigation.

Q. What does the investigation involve?

A. The investigation may include a review of written documents, telephone interviews or on-site interviews of witnesses or documents.

Probable Cause and Conciliation

Q. What happens after the investigation?

A. The commissioner assigned to the case must make a determination of whether there is probable cause to believe discrimination has or is occurring. If the commissioner determines that there is no probable cause, written notice of this finding is served on the complainant and the school district within 10 business days after the determination is made. If the commissioner finds there is probable cause, KHRC attempts to get the parties to agree to settle the matter through conciliation within 45 days after the probable cause determination is made. The parties may agree to extend the time period.

KHRC Hearing

Q. What if conciliation efforts are unsuccessful?

A. If conciliation fails, the commission may commence a hearing in the matter. The hearing procedure is governed by provisions of the Kansas Administrative Procedure Act.

Q. Who hears the matter?

A. At least four commissioners and a presiding officer.

Q. Who is the presiding officer?

A. Either a staff hearing examiner or a contract hearing examiner.

Q. Where is the hearing held?

A. In the county where the school is located and the acts complained of occurred.

Q. Can information and witnesses be subpoenaed?

A. Yes. The presiding officer has authority to issue subpoenas for witnesses or documents and is required to do so at the request of either party.

Q. Can conversations which occurred during conciliation be introduced into evidence at the hearing?

A. No. Any endeavors at conciliation cannot be used as evidence at the hearing.

Dismissal of a Complaint

Q. When are complaints dismissed?

A. Complaints may be dismissed by the Commission on its own initiative. Complaints must be dismissed upon the written request of the complainant, or if the commission has not issued a finding of probable cause or no probable cause or taken other administrative action dismissing the complaint within 300 days of the filing of the complaint. The complaint must be dismissed if the hearing results in a no probable cause finding.

Q. Are we notified if the complaint is dismissed?

A. Yes. The commission must mail written notice to all parties of the dismissal of a complaint within five days of dismissal.

Q. Is a dismissal order subject to review?

A. Dismissal of a complaint in this manner constitutes final action by the commission and is deemed to exhaust all administrative remedies under the Act for the purpose of allowing subsequent filing of the matter in court by the complainant, without the requirement of filing a petition for reconsideration pursuant to K.S.A. 44-1010.

Remedies

Q. What are the remedies if the hearing panel concludes discrimination has occurred?

A. If the presiding officer finds the school has engaged in or is engaging in any discriminatory practice, the presiding officer must render an order requiring the school to cease and desist from the practice and to take such affirmative action, including the hiring, reinstatement, or upgrading of employees, with or without back pay, as, in the judgment of the presiding officer, will effectuate the purposes of the act. The order may also include an award of damages for pain, suffering and humiliation, not to exceed the sum of $2,000, which are incidental to the act of discrimination.

Reconsideration and Judicial Review of the Order

Q. Is the order subject to review?

A. Yes. Either party may petition the commission for reconsideration of the matter in accordance with the provisions of K.S.A. 77-529. Unless the party petitions for reconsideration, no cause of action accrues in any court. Further, a party cannot urge or rely on any ground not set forth in the petition for reconsideration if the matter proceeds to court.

Q. After petitioning for reconsideration, is the order subject to further review?

A. Yes. Any action of the commission under KAAD is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions except:

  • Determinations of no probable cause are specifically exempted;
  • The attorney general or county or district attorney, in addition to those persons specified by K.S.A. 77-611, and amendments thereto, has standing to bring an action for review; and
  • On review, the court must hear the action by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and amendments thereto, and the court, in its discretion, may permit any party or the commission to submit additional evidence on any issue.
Q. What may the court do on review?

A. After hearing, the court may affirm the adjudication, set aside or modify it in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.

Posting Notice of Rights

Q. Do we have to post notice of rights under KAAD?

A. Yes. Notice of rights under the Kansas Act Against Discrimination must be posted in conspicuous places in each school.

Penalties

Q. Are there penalties for violating the KAAD?

A. In some cases. A person who willfully resists, prevents, impedes or interferes with the commission in the performance of their duties under the act or who willfully violates an order of the commission is guilty of a misdemeanor and upon conviction may be punished by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

Age Discrimination

Q. Why isn’t age included in the KAAD?

A. Age discrimination claims in Kansas are controlled by the Kansas Age Discrimination in Employment Act, K.S.A. 44-1111 et seq. Complaints under the KADEA are handled by the KHRC in the same manner as complaints under the KAAD.

Section 504 of the Rehabilitation Act of 1973

What’s Prohibited?

Q. What does Section 504 prohibit?

A. Discrimination against an otherwise qualified individual with a disability, solely on the basis of disability, by any program or activity receiving federal financial assistance.

Individual with a Disability

Q. For purposes of Section 504, who is an individual with a disability?

A. The definition of a disability adopted for the Americans with Disabilities Act by the ADA Amendments Act of 2008 applies to Section 504. An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment or is regarded as having such an impairment.

Major Life Activity

Q. What is a major life activity?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Qualified Individual with a Disability

Q. Are all individuals with disabilities entitled to protection under Section 504?

A. No. In order to be protected by Section 504 an individual must be “qualified” for the employment position, program or service offered by the school.

Q. Who is “qualified” for employment purposes?

A. For employment purposes, a qualified individual with a disability is one who meets the qualification standards for the job and is able to perform the essential functions of the job, with or without reasonable accommodation. The Supreme Court has interpreted Section 504 to mean that an otherwise qualified person is one who is able to perform the duties and responsibilities of the position in question, in spite of his disability. Southeastern Community College v. Davis, 442 U.S. 397, 407 (1979).

Q. Are any persons deemed “unqualified” because of the nature of the handicap?

A. Occasionally. Individuals who have a currently contagious disease or infection which would constitute a direct threat to the health or safety of others or who are unable to perform the essential functions of the job are generally deemed unqualified, thus not entitled to protection.

Q. What is “undue hardship?”

A. Under Section 504, “undue hardship” means undue financial or administrative burdens or a fundamental alteration in the nature of the program. Factors to consider in determining undue hardship include the overall size of the school, taking into account the number of employees, the number and type of facilities, and the size of the budget. Additionally, the nature and cost of the accommodation are factors to consider.

Q. What about drug users or alcoholics?

A. Drug addiction and alcoholism are both conditions which may result in a finding the drug user or alcoholic are handicapped individuals under Section 504. However, both the ADA and Section 504 exclude an individual who is currently engaging in the illegal use of drugs from protection. An individual who is not currently engaging in the illegal use is protected if he or she has successfully completed or is participating in a supervised rehabilitation program.

Section 504 also excludes from protection an individual who is an alcoholic whose current use of alcohol prevents the individual from performing the duties of the job or whose employment, by reason of the alcohol abuse, would constitute a direct threat to the property or safety of others. The ADA does not exclude alcoholics from the definition of an individual with a disability, but does provide that an employer may hold an alcoholic or illegal drug user to the same qualification or job performance standards as other employees.

Reasonable Accommodation

Q. Are we required to provide accommodations for employees or others under Section 504?

A. Yes. For more information on reasonable accommodation see the ADA section of this chapter. As with the ADA, the courts interpreting Section 504 have required reasonable accommodation of known disabilities unless the employee would remain unable to perform the essential functions of the job or providing the accommodation would result in undue hardship.

Protections for Students and Patrons

Q. Are students covered by Section 504?

A. Yes. Elementary, secondary, postsecondary and adult education students are covered by Section 504. At the postsecondary level, colleges and universities must provide students with reasonable accommodations if students are qualified for the program and accommodation would not fundamentally alter the nature of the program. At the elementary and secondary level, students must be evaluated and provided with a free appropriate public education. For students identified under IDEA, IDEA procedures suffice to meet Section 504 standards. For those not eligible under IDEA, most districts use Section 504 accommodation. For comprehensive information on Students and Section 504, see the KASB Section 504 Handbook. Also see the section on Discrimination in the Student section of this Handbook which can be accessed at this link: Discrimination: Based on Disability

Q. Are parents and patrons of the district protected by Section 504?

A. Yes. If you offer programs or services for parents and patrons (e.g., school plays, athletic events, parent-teacher conferences, ceremonies and banquets, etc.) you cannot discriminate against an individual because of their handicap.

Enforcement

Q. Who enforces Section 504?

A. For educational institutions, Section 504 is enforced by the Office for Civil Rights of the Department of Education.

Remedies

Q. What are the remedies under Section 504?

A. Remedies under Section 504 mirror those available under Title VI. Aggrieved individuals may file complaints with OCR. A violation of Section 504 can result in action by the Department of Education to terminate federal funding for the violating school or college. Additionally, aggrieved individuals may bring action in court against the educational institution. Generally, an aggrieved individual need not exhaust administrative remedies prior to filing private lawsuits. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017 (1983), cert. denied, 467 U.S. 1252, rehearing denied, 468 U.S. 1224 (1984). A prevailing party in an action brought under Section 504 may be awarded attorney’s fees pursuant to the provisions of 42 U.S.C. § 1988.

Steps to Ensure Compliance

Q. What steps should school districts take to ensure compliance with Section 504?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of disability or handicap;
  • Designate a school employee responsible for coordinating the school’s efforts under Section 504;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Adopt due process procedures for hearings involving students;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of disability;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training to staff and students on the elements of the policy and enforcement of the policy.

Title VI of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VI prohibit?

A. Title VI prohibits exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on the basis of race, color, or national origin. The law prohibits intentional practices as well as those with a discriminatory effect. Guardians Association v. Civil Service Commission of New York, 463 U.S. 582 (1983). Title VI contains an express limitation on its applicability to employment related actions. Relief for employment discrimination is available only “where a primary objective of the federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3; Reynolds v. School District No. 1, 69 F.3d 1523 (10th Cir. 1995).

Q. Does Title VI apply to students?

A. Yes. For additional information about this subject, see the “Discrimination: Based on Race, Color and National Origin” section in the Students chapter of this Handbook which can be accessed at this link: Discrimination: Based on Race, Color or National Origin

Q. Does Title VI cover racial harassment?

A. Yes. OCR has issued guidance on the investigation of allegations of racial harassment under Title VI. Schools should have policies which prohibit such harassment.

Enforcement

Q. Who enforces Title VI?

A. In the case of educational institutions, the Office for Civil Rights of the Department of Education. The Department may initiate investigations based on a complaint that indicates noncompliance with the Act, an annual report, or a periodic compliance review. Incidents of noncompliance may be referred to the Department of Justice for proceedings under any applicable federal, state, or local law. A private right of action exists. Cannon v. University of Chicago, 441 U.S. 677 (1979). An aggrieved individual may file a lawsuit without first exhausting available administrative remedies. Chowdhury v. Reading Hospital Medical Center, 677 F.2d 317 (3rd Cir. 1982).

Remedies

Q. What are the remedies under Title VI?

A. Loss of federal funding. An individual may obtain only injunctive, declarative, or prospective relief. Money damages may also be available. Attorney fees are available under 42 U.S.C. § 1988.

Q. Can federal funding be terminated without any formal proceedings?

A. No. Prior to instituting enforcement proceedings, the law requires the Department of Education to advise the school of the noncompliance and attempt to secure voluntary compliance. Enforcement proceedings cannot begin until the Department determines that voluntary compliance cannot be obtained. Further, there must be an express finding of noncompliance on the record, after an opportunity for a hearing, before funding may be refused or revoked. Further, the department is required to file a written report outlining the grounds for termination or refusal to fund with Congress.

Steps to Comply with Title VI

Q. What steps should the school take to comply with Title VI?

A. The Title VI regulations, like the Title IX and Section 504 regulations, suggest you should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of race, color or national origin;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VI;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements of the policy and enforcement of the policy.

Title VII of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VII prohibit?

A. Title VII prohibits discrimination in employment with respect to compensation, terms, conditions, or privileges of employment, based on race, color, national origin, religion, or sex by private employers with 15 or more employees, as well as by federal, state and local governments.

Q. What types of discrimination are prohibited?

A. Unlawful discrimination includes overt or “disparate treatment” discrimination, “disparate impact” discrimination, sexual and racial harassment and retaliation. Under § 701(k), added to Title VII by the Pregnancy Discrimination Act of 1980, sex discrimination includes discrimination “on the basis of pregnancy, childbirth or related medical conditions.”

Retaliation

Q. Does Title VII protect individuals from retaliation?

A. Yes. Title VII, like most anti-discrimination laws, makes it unlawful for an employer to take action against an individual because that individual has opposed practices which are in violation of Title VII or has participated in a Title VII proceeding. The protection afforded is not absolute; acts by an employee which are disruptive, insubordinate, or damaging to the employer’s legitimate business interests may fall outside the statutory protection against retaliation. See Jennings v. Tinley Park Community Consol. School Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988).

Q. What must an employee show to succeed on a claim of retaliation?

A. In order to succeed on a claim of retaliation under Title VII, an employee must show:

  • He or she engaged in protected activity;
  • An adverse employment action was taken; and
  • There was a causal connection between the employment action taken and the protected activity.

Disparate Treatment and Disparate Impact

Q. What are “disparate treatment” and “disparate impact”?

A. Title VII case law has developed two frameworks for analyzing discrimination claims: one for cases which involve intentionally discriminatory treatment, commonly referred to as disparate treatment, and one for disparate impact cases which involve facially neutral policies or practices which have a discriminatory impact. Proof of discriminatory motive is critical in disparate treatment cases, but is not required in disparate impact cases. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Discriminatory intent may be inferred, however, from surrounding circumstances. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Q. What must an employee do to establish a disparate treatment claim?

A. In some cases there may be direct evidence of discrimination. In other cases, it must be inferred from the circumstances. In two early Title VII cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court developed the criteria for establishing a case of intentional discrimination in the absence of direct evidence of unlawful motivation. This scheme requires the employee to establish a prima facie case of discrimination. The elements of a prima facie case include:

  • Membership in a class of persons protected by Title VII;
  • Qualification for the position in question;
  • An adverse employment action (failure to hire, failure to promote, termination of employment, etc.); and
  • A continuing need for a person with the plaintiff’s qualifications in the position, or the filling of the position with someone outside of the protected class.

After the employee establishes a prima facie case, the employer must then rebut the presumption of discrimination by producing evidence of nondiscriminatory reasons for the employment action. Once the employer has articulated legitimate, nondiscriminatory reasons for the employment action, the employee must prove that the proffered reasons are mere pretext, and convince the fact-finder that discrimination was a motivating factor for the adverse employment action.

Q. What must an employee do to establish a disparate impact claim?

A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court held that facially neutral practices which operate as “built-in headwinds” for minority groups and are not related to measuring job performance capability violate Title VII regardless of the employer’s lack of discriminatory intent. In these cases, a plaintiff must show, by statistics or otherwise, that the employment practice in question results in a substantially disproportionate underrepresentation of a group of protected persons in order to establish a prima facie disparate impact case.

Once the employee has set forth a prima facie case, the burden shifts to the employer to show it had a business necessity for the challenged practice. The employer must demonstrate that the practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Even if the employer demonstrates a business necessity, the employee can still prevail by showing the existence of an alternative practice which the employer refused to adopt, demonstrating that the asserted business necessity defense is mere pretext. Cost and effectiveness of the asserted alternative are factors which the court will consider in determining if the employee has met the rebuttal burden. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Discrimination on the Basis of Sexual Preference or Gender Identity

Q. Does Title VII provide protection on the basis of sexual preference?

A. Until recently, most courts had held Title VII does not provide protection to individuals on the basis of sexual preference such as homosexuality. However, recently some courts have ruled differently. The U.S. Supreme court has not yet addressed the issue. Similarly, courts are splitting on the issue of coverage for transgender individuals.

Discrimination on the Basis of Religion

Q. What protection does Title VII provide for religion or religious beliefs?

A. Title VII prohibits discrimination in employment on the basis of an individual’s religion which is defined to include all aspects of religious observance and practice, as well as belief. Title VII protects an employee’s religious practices and observances whether or not the employee belongs to a particular religious sect, so long as the practices are based upon “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1. If the belief of an individual is sincerely held and a motivating force in the individual’s life, an employer must make reasonable accommodation to the employee’s religion, in the absence of undue hardship on the employer’s business.

Q. What must an employee show to establish a case of religious discrimination?

A. To establish a prima facie case, an employee must show:

  • He or she had a bona fide religious belief;
  • The employer was informed of the religious belief and that it was in conflict with the employee’s responsibilities; and
  • He or she was threatened with or subjected to discriminatory treatment for the inability to perform the disputed job duty.

The question then becomes whether the employer is required to provide a reasonable accommodation for the religious belief.

Q. Is requiring employees to take leave without pay for religious observances a reasonable accommodation?

A. Probably. In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Supreme Court considered a challenge to a school district’s practice of requiring that days of religious observance be taken as leave without pay after three days of religious observance leave were exhausted and upheld the practice. The Tenth Circuit Court of Appeals similarly upheld the use of unpaid leave as a reasonable accommodation for a teacher’s religious beliefs in Pinsker v. Joint Dist. No. 28J, 735 F.2d 388 (10th Cir. 1984).

Q. Isn’t having to get a substitute for a teacher’s absences for religious reasons an undue hardship?

A. Most courts say no. Schools have unsuccessfully argued that being required to secure a substitute for a teacher’s absences constitutes an undue hardship in several cases. See Niederhuber v. Camden County Vocational & Technical School Dist., 495 F. Supp. 273 (D.N.J. 1980); Rankins v. Commission on Professional Competence of the Ducor Union School Dist., 593 P.2d 852(Cal. 1979). This has been true even where the district is unable to secure a substitute with proper qualification in the discipline. See Wangsness v. Watertown School Dist., 541 F. Supp. 332 (D.S.D. 1982).

Enforcement

Q. Who enforces Title VII?

A. The EEOC is responsible for enforcing Title VII. This is done through the processing of charges filed by individuals and the filing of lawsuits by the EEOC. The individual may also file his or her own lawsuit at the conclusion of the EEOC's processing of the charge.

Remedies

Q. What are the remedies under Title VII?

A. Until passage of the Civil Rights Act of 1991, a plaintiff under Title VII or the ADA was entitled to traditional equitable remedies, such as reinstatement, backpay, front pay, and injunctive relief. As enacted, Title VII made no mention of legal damages, and except for nominal damages, such damages were generally considered unavailable under these laws. The Civil Rights Act of 1991, however, allows for recovery of compensatory and punitive damages in Title VII or ADA cases which involve acts of intentional discrimination. Such damages are not available in disparate impact cases.

Punitive damages are available against a respondent only if it is shown that the respondent engaged in the discriminatory practice with malice or reckless indifference to the federally protected rights of the victim. Punitive damages cannot be imposed on a government, government agency, or a political subdivision such as a public school district or community college.

Compensatory damages may be awarded to compensate individuals for their actual losses, and can include such things as medical expenses, future pecuniary losses, emotional pain and suffering, mental anguish, loss of enjoyment of life. The total amount of damages which may be awarded in cases is capped by the law. The amount of the cap is predicated on the number of employees employed by the school or college. The caps are as follows: more than 14 but fewer than 101 employees: $50,000; more than 100 but fewer than 201 employees: $100,000; more than 200 but fewer than 501 employees: $200,000; and more than 500 employees: $300,000.

Attorney fees may be awarded to the prevailing party. A jury trial is available under Title VII.

Q. Are punitive damages available?

A. Not against a school district, but they may be available against individual defendants.

Title VII: Sexual Harassment

Definition of Sexual Harassment

Q. What is sexual harassment?

A. The EEOC’s guidelines indicate unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 29 CFR § 1604.11.

School District Liability for Harassment

By Supervisory Personnel

Q. Is a school district liable for sexual harassment by its supervisory personnel?

A. The types of harassment explained in numbers one and two of the EEOC definition are generally called quid pro quo harassment. There is strict liability for an employer for quid pro quo harassment by a supervisor who has the authority to take action against an employee. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

In Faragher v. City of Boca Raton, 524 U.S. 775(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), the Supreme Court held an employer is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if the employer has not taken adverse job action against the victim of the harassment, the employer may raise an affirmative defense to liability. The defense has two elements:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
Q. Who qualifies as a supervisor?

A. According to the EEOC Enforcement Guidance, an individual qualifies as an employee’s supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee or has authority to direct the employee’s daily work activities. A person outside the employee’s direct chain of command may also “qualify” as a supervisor if the employee reasonably believes the harasser has broad authority over or could influence employment decisions with regard to the employee.

Q. What is a tangible employment action?

A. It is a significant change in employment status. Examples include hiring, firing, promotion, demotion, failure to promote, undesirable reassignment, a significant change in benefits, compensation decisions and work assignments.

Q. How can we show we exercise reasonable care to prevent and promptly correct harassment?

A. Adopt, publicize and even-handedly enforce a harassment policy and complaint procedures. Provide employees with copies of the policy and complaint procedure, redistribute the policy periodically, and provide employees with training on the policy and procedures.

Q. How can we show an employee acted unreasonably?

A. An employer may be able to show an employee acted unreasonably by showing the employee provided it with no information about the harassment; provided it with untruthful information about the harassment; failed to cooperate in the investigation of the complaint or unreasonably delayed in filing a complaint.

Q. What makes an employee’s refusal to file a complaint reasonable?

A. Generally it will be difficult for an employer to show the employee acted unreasonably if the employee can show she or he had a reasonable fear of retaliation, there were obstacles to filing complaints, or she or he perceived the complaint process to be ineffective.

By Non-Supervisory Co-Workers or Non-Employees

Q. Is the district liable for sexual harassment by non-supervisory co-workers and/or non-employee individuals?

A. Both the courts and the EEOC take the position the employer is liable if it knew or should have known of the conduct and failed to take steps to remedy the situation.

Paramour Preferences

Q. Is there any potential liability for paramour preferences?

A. The courts are split on whether a plaintiff denied promotion, advances, etc., in favor of someone romantically involved with the decision-maker has a valid cause of action. Compare Toscano v. Nimmo, 570 F.Supp. 1197 (D. Del. 1983) and Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986) [violation found] with Miller v. Aluminum Company of America, 679 F.Supp. 495 (W.D.Pa. 1988); aff'd, 856 F.2d 184 (3rd Cir. 1988) and DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987) [no violation].

Sexual Harassment Policy Components

Q. What should a sexual harassment policy contain?

A. At a minimum the policy should include:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Corrective Action

Q. What type of corrective action should we take if harassment occurs in our school?

A. Corrective action should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. Remedial measures need not be those that the employee requests or prefers, as long as they are effective.

Disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

Corrective action should not adversely affect the complainant but should correct the effects of the harassment. It should be designed to put the employee in the position she or he would have been in if the misconduct had not occurred.

No Application to Students

Q. Does Title VII apply to students?

A. No. Not unless they are also employees of the district. However, sexual harassment of students is covered by Title IX. See the discrimination section of the Students chapter of this Handbook for more information on student harassment which can be accessed at this link: Discrimination: Based on Sex: Sexual Harassment

Steps to Comply with Title VII

Q. What steps should school districts take to limit liability for sexual harassment in employment?

A. Schools should take the following steps:

Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;

  • Designate a school employee responsible for coordinating the school’s efforts under Title VII;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify employees that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for staff.
Q. Is having a sexual harassment policy really that important?

A. Yes, the existence of a policy forms the basis for the defense to liability under the most recent Supreme Court cases.

Employee on Student Harassment

Q. Can the district have liability if an employee harasses a student?

A. Yes, but not under Title VII. A student may have a damage remedy under Title IX of the Education Amendments of 1972, but only if a school official who has authority to address the alleged harassment has actual knowledge of the harassment and fails to adequately respond. A school district may also have liability for tort claims under state law.

Title IX of the Education Amendments of 1972

What’s Prohibited?

Q. What does Title IX prohibit?

A. Discrimination on the basis of sex in private or public educational programs receiving federal funds.

Enforcement

Q. Who enforces Title IX?

A. The Office for Civil Rights of the Department of Education enforces the Act. Periodic compliance reviews or a complaint filed by an aggrieved individual may trigger an investigation. As with Title VI and Section 504, complaints of discrimination under Title IX can be filed with OCR.

Application

To Employees

Q. Does Title IX cover employment discrimination?

A. Unlike Title VI, after which Title IX was patterned, none of the statutory exemptions under Title IX apply to employment. However, until the Supreme Court decision in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), most courts limited Title IX’s protections to direct beneficiaries of the federal financial assistance and did not extend those protections to victims of employment discrimination. In North Haven, however, the Supreme Court upheld regulations issued by the Department of Health, Education and Welfare which prohibited discrimination on the basis of sex in employment under Title IX.

Q. What standards do courts apply to claims of sexual harassment in employment under Title IX?

A. Courts have generally concluded that developing separate standards for sex discrimination under Title IX and Title VII would serve no purpose, and have applied Title VII analysis to Title IX claims involving employment discrimination. See Mabry v. State Bd. of Community Colleges Occupational Educ., 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849 (1987); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

To Students

Q. Does Title IX protect to students?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Athletic Programs; Discrimination: Based on Sex: Pregnant or Married Students

Q. Do courts apply different standards to claims of sexual harassment by students under Title IX?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Sexual Harassment

Remedies

Q. What remedies are available?

A. Federal funding may be terminated. An aggrieved individual may file a private right of action. Cannon v. Univ. of Chicago, 441 U.S. 677, 706-708 (1979). An aggrieved individual may obtain injunctive relief, e.g., an order that the individual be hired, as well as attorney fees. Money damages are available. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60(1992).

Steps to Comply with Title IX

Q. What steps should school districts take to ensure compliance with Title IX?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title IX;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for students and staff.
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School Law Handbook

Chapter 1: Board Meetings

Agendas
Amending the Agenda
Providing Copies of the Agenda
Conflict of Interest
What a Board Member with a Conflict Should Do
Legal Definition of a Conflict
Duty to Declare a Conflict
Advisory Opinions
Contracting with the School District
Participation in Negotiations
Penalty for Violations
July Organizational Meeting
Election of Officers
Scheduling Board Meetings
Other Appointments and Actions
Official Newspaper
Kansas Open Meetings Act
Purpose
What Constitutes a Meeting
Quasi-judicial Capacity
Social or Informal Gatherings
Meeting with State Employees
Meetings Initiated by Outside Groups
Retreats or Study Sessions
Conference Calls
Serial Meetings
Written Memoranda
Committee Meetings
Meetings for Negotiations
Notice
Recording Meetings
Meeting Out of District
Meetings to Discuss Consolidation
Executive Session
Nonelected Personnel
Attorney-Client Privilege
Attendance at Executive Session
Confidentiality of Executive Session
Penalties
Enforcement
Consent Judgment
Investigations
Consent Orders and Findings of Violation

Agendas

Q: Are we required to have an agenda for board meetings?

A: No. The law does not require a board to have an agenda for a meeting, but if an agenda is prepared, it must be made available to the public.

Amending the Agenda

Q: Once an agenda for a regular meeting is printed can the agenda be amended?

A: Generally, yes. The board can amend the agenda, so long as it is not intentionally leaving items off the agenda to deceive the public. This would potentially result in a violation of the Kansas Open Meetings Act. In Klein v. Johnson County Bd. Of County Commissioners, 2003 WL 221760 (Kan. App. 2003), the court found the failure to include a planned topic of discussion on the agenda violated KOMA.

Q: When can the agenda be amended?

A: Unless otherwise limited by board policy, an agenda may be amended at any time during a meeting. To the extent possible, it is preferable to amend the agenda at the beginning of the meeting.

Q: May we amend the agenda of a special meeting?

A: No. A special meeting must be called for a specific purpose; the agenda should not be amended.

Providing Copies of the Agenda

Q: Our board will hold a special meeting in three days. Must we provide copies of the agenda and supporting documents with the notice?

A: No. While board members are entitled to written notice of the time, place, and purpose of a special meeting, only notice of the time and place of the meeting must be given to other persons who have requested notice; a copy of the agenda and supporting documents need not be attached. However, pursuant to the Kansas Open Records Act, a copy of the agenda and supporting documents which are not exempt from the open records requirement, must be provided upon request.

Conflict of Interest

What a Board Member with a Conflict Should Do

Q: If I have a conflict of interest and do not wish to vote, what should I do?

A: Leave the meeting until voting on the issue has concluded. Because
K.S.A. 72-1138 requires an abstaining vote to count as a “no” vote, this is the recommended procedure a board member should follow when there is a conflict of interest.

Legal Definition of a Conflict

Q: When does a board member have a conflict of interest?

A: Legally a board member has a conflict of interest only if the board member has a substantial interest in a contract. There may be other issues in which there is an ethical or moral conflict, but there are no legal restrictions on a board member's actions on these issues.

Q: What is a substantial interest in a contract?

A: K.S.A. 75-4301a defines “substantial interest.” An individual is deemed to have a substantial interest in the following situations:

  • If an individual or his or her spouse, either individually or collectively, has owned within the preceding 12 months a legal or equitable interest exceeding $5,000 or 5 percent of any business, whichever is less;
  • If an individual or his or her spouse, either individually or collectively, has received during the preceding calendar year compensation which is or will be required to be included as taxable income on federal income tax returns of the individual and spouse in an aggregate amount of $2,000 from any business or combination of businesses;
  • If an individual or his or her spouse, either individually or collectively, has received in the preceding 12 months, without reasonable and valuable consideration, goods or services having an aggregate value of $500 or more from a business or combination of businesses;
  • If an individual or his or her spouse holds the position of officer, director, associate, partner or proprietor of any business, other than certain 501(c) tax exempt organizations, irrespective of the amount of compensation received by the individual or individual’s spouse; and
  • If an individual or his or her spouse receives compensation which is a portion or percentage of each separate fee or commission paid to a business or combination of businesses, the individual has a substantial interest in any client or customer who pays fees or commissions to the business from which fees or commissions the individual or his or her spouse, either individually or collectively, received an aggregate of $2,000 or more in the preceding calendar year.
Q: How is a business defined?

A: “Business” means any corporation, association, partnership, proprietorship, trust, joint venture, and every other business interest, including ownership or use of land for income.

Duty to Declare a Conflict

Q: Can the board require that a board member declare a conflict of interest?

A: No. The duty is on the board member to declare the conflict.

Q: Can I, as a board member, do anything if I believe a board member has a conflict and refuses to do anything?

A: You may talk with the board member about your concerns.

Advisory Opinions

Q: Can we get an opinion from anyone on whether certain actions would create a conflict?

A: You may seek an opinion from the Kansas Governmental Ethics Commission. A request for an advisory opinion should be sent to the Secretary of State who in turn notifies the Commission. K.S.A. 75-4303a.

Contracting with the School District

Q: Does this mean a board member can never contract with the school district?

A: No. It simply means the board member cannot participate as a board member in the making of the contract. A local governmental officer or employee does not make or participate in the making of a contract if the officer or employee abstains from any action in regard to the contract. Further, the prohibition does not apply to:

  • Contracts let after competitive bidding has been advertised for by published notice; and
  • Contracts for property or services for which the price or rate is fixed by law. K.S.A. 75-4304.

Penalty for Violations

Q: What happens if a board member violates the conflict of interest law?

A: If convicted, the board member would forfeit his or her board office. K.S.A. 75-4304(e).

Participation in Negotiations

Q: Can a board member participate in negotiations if his or her spouse is a teacher in the same school district?

A: Yes. This question was posed to the Kansas Governmental Ethics Commission in Opinion No. 1991-17. The Commission noted that the law prohibits a school board member from participating in the making of a contract with any person or business by which the board member is employed or in whose business the board member has a substantial interest. Because a governmental unit is not included in the definition of “business” under the conflict of interest law that applies to local units of government, the Commission concluded a board member is not precluded from serving on the board’s negotiating team in this circumstance.

July Organizational Meeting

Election of Officers

Q: When do we elect our president and vice president?

A: Annually at the July organizational meeting. K.S.A. 72-1133.

Scheduling Board Meetings

Q: When do we set our board meeting dates, times and locations?

A: Annually at the July organizational meeting. K.S.A. 72-1138.

Q: Are we required to have a certain number of meetings of the board?

A: You must meet at least monthly. Beyond that there are no further requirements.

Other Appointments and Actions

Q: Are there other actions we should take at the July organizational meeting?

A: Yes. You should do the following:

  • Appoint a clerk and treasurer;
  • Appoint a KPERS representative, a food service program representative, a deputy clerk, and a school attorney;
  • Appoint an impact aid representative if your district receives impact aid;
  • Appoint a hearing officer for free and reduced price meal application appeals;
  • Appoint representatives to any service center boards or AVTS boards, if necessary;
  • Designate the individuals in each building responsible for reporting children truant pursuant to K.S.A. 72-3121;
  • Designate a coordinator for homeless children duties;
  • Designate compliance coordinator(s) for federal anti-discrimination laws including Title VI, Title VII, Title IX, ADA and Section 504;
  • Designate the official depository for school district funds and review bank signatures on file, K.S.A. 9-1401;
  • Adopt the annual waiver of requirements for generally accepted accounting principles, K.S.A. 75-1120a;
  • Adopt an early payment request policy and designate an employee authorized to make such payments, K.S.A. 12-105b(e);
  • Establish student fees, K.S.A. 72-3353, student meal prices, textbook rental fees, K.S.A. 72-3346 and the reimbursement rate for mileage, K.S.A. 75-3203;
  • Adopt a school calendar and designate inclement weather make-up days if your district wants them, K.S.A. 72-3115;
  • Adopt a resolution to establish petty cash accounts and petty cash limits, K.S.A. 72-1177;
  • Adopt guidelines for activity funds and gate receipts, K.S.A. 72-1178;
  • Rescind all policy actions from the previous year and adopt current written policies as those that will govern for the school year;
  • Approve district, school and/or athletic handbooks;
  • Select the official district newspaper for publication of official notices, K.S.A. 64-101.
Q: Are there other things we should do at the July meeting?

A: The Kansas State Department of Education suggests you should also:

  • Review units of credit offered at each attendance center to make sure each center is in compliance with accreditation rules and regulations;
  • Review the preliminary budget;
  • Review records in storage for possible destruction of old records pursuant to K.S.A. 72-1629;
  • Review the district’s insurance policies, including types of coverage, names of companies, and schedule for renewal;
  • Review the capital outlay mill levy authority to see if renewal is needed;
  • Review the immunization policy to ensure it is in compliance with statute. K.S.A. 72-6261.

Official Newspaper

Q: Can we select any newspaper to be our official newspaper?

A: No. The newspaper must be one having general circulation in the district. This is defined as one that:

  • Is published at least weekly 50 times each year;
  • Is entered at the post office in the school district of publication as periodical class mail matter;
  • Has general paid circulation on a daily, weekly, monthly or yearly basis in the school district;
  • Is not a trade, religious or fraternal publication; and
  • Is published in the school district publishing the official publication or notice. K.S.A. 64-101.
Q: We have a new weekly newspaper just starting up in our town. May they be our official newspaper?

A: No. The newspaper must have been published at least weekly 50 times per year for one year before you can consider it a newspaper having general circulation in the district. K.S.A. 64-101(c)(1).

Q: No newspaper is published in our district. What should we do?

A: If there is no newspaper published in the school district, you may use a newspaper which is published in Kansas and has general circulation in the school district. K.S.A. 64-101(c)(4).

Kansas Open Meetings Act

Purpose

Q: What is the purpose of the Kansas Open Meetings Act?

A: Its purpose is to ensure that the proceedings of public governing bodies are open to the public. K.S.A. 75-4317. The law requires a board of education to:

  • Conduct its affairs and transact its business in meetings which are open to the public;
  • Refrain from taking any binding action by secret ballot;
  • Provide notice of the date, time and place of any regular or special meeting to anyone requesting such notice;
  • Make the agenda, if one is prepared, for any meeting available to anyone requesting the agenda;
  • Recess into executive session only for those reasons stated in the statute.

What Constitutes a Meeting

Q: What is a meeting for KOMA purposes?

A: A meeting is defined as “any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a public body or agency subject to this act for the purpose of discussing the business or affairs of the public body or agency.” K.S.A. 75-4317a.

To be a meeting subject to KOMA’s requirements, the gathering must meet three conditions:

  • It must include four or more board members. Because by law school boards consist of seven members, four members constitute a majority;
  • It must be for the purpose of discussing school board business;
  • It must involve interactive communication.

Quasi-judicial Capacity

Q: Are there any exceptions?

A: One exception to this definition occurs when the board sits in a quasi-judicial capacity (e.g., when a student appeals a long-term suspension or an expulsion to the board). When deliberating on matters relating to a decision involving quasi-judicial functions, the board is not required to have an open meeting. However, any vote taken as a result must occur in open session. K.S.A.75-4318(g)(1).

Social or Informal Gatherings

Q: What about social gatherings?

A: Generally, there will be no meeting under KOMA if four or more board members happen to be at the same social gathering, be it a wedding, a concert, a holiday party or a golf tournament. On these occasions, even though four or more board members may be present, the purpose of the gathering is not discussing school business. On the other hand, if the four or more board members, once at the otherwise innocuous social event, retreat to a quiet corner to discuss school business, a violation has arguably occurred. To avoid a violation, board members should refrain from discussing school business with other board members at social gatherings.

Q: What about informal gatherings of the board?

A: Although board members may comply with KOMA for the formal board meeting, violations may occur if four or more board members informally gather and discuss business before, after, or during recesses of the meeting. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416 (1978).

Meeting with State Employees

Q: Four members of the board of education desire to drive to Topeka to visit with KSDE personnel. Will this violate the Kansas Open Meetings Act?

A: In order to avoid a violation of the KOMA, the board of education should provide notice of the meeting to all persons who have requested notice of their meetings. Further, board members should not discuss board business while traveling. If three or fewer members of the board were meeting with the state employee, the potential for a violation would be eliminated.

Meetings Initiated by Outside Groups

Q: What if outside groups initiate the meeting?

A: When outside groups–the Chamber of Commerce, the PTO, the local NEA, or others–request that four or more board members attend one of their meetings for the purpose of discussing school issues, the gathering is a meeting of the board for the purposes of KOMA. Notice of the meeting should be given to anyone who has requested notice under KOMA. The meeting does not need to be treated as a board meeting in other respects (i.e., the clerk does not need to take minutes).

Retreats or Study Sessions

Q: Are retreats or study sessions of the board, where no action will be taken, meetings for KOMA purposes?

A: Yes. Frequently boards of education decide to have retreats or study sessions for setting goals and future planning. At these sessions, discussion is informal and no votes are taken. Regardless of the formality or informality of the session, it is a meeting at which the affairs of the school district are discussed and therefore is a meeting which must be open to the public under the Act.

Conference Calls

Q: What about conference calls with four or more board members?

A: Telephone calls among four or more board members who discuss school business are meetings subject to KOMA.

Serial Meetings

Q: As a board member, may I call four or more other board members, one at a time, to discuss a particular issue?

A: It depends. Serial meetings are subject to KOMA’s openness requirement, but only if:

  • They collectively involve a majority of the membership of the board;
  • They share a common topic of discussion concerning the business affairs of the school board; and
  • They are intended by any or all of the participants to reach agreement on a matter that would require binding action to be taken by school board. K.S.A. 75-4318(f).
Q: For serial meetings, does the conversation have to be contemporaneous?

A: No. Just interactive.

Q: What if a parent talks to four or more of us about the same issue?

A: If a third party, such as a parent or a newspaper reporter, communicates with four or more board members in a series of communications about the same issue, KOMA is not violated, unless the third party is acting at the request of a board member.

Q: Can four or more of us talk about adding items to the agenda?

A: According to the Attorney General, discussion of purely procedural issues, such as adjustments in the agenda, even if they involve more than a majority of members of the board, are not the type of topics contemplated for KOMA coverage. Such conversations do not violate KOMA unless they lead to discussion of the substantive issues involved. In other words, if a board member asks the board president to add an item to the agenda, but only if there will be enough votes to pass the item, and the board president then calls various other members to determine how they would vote on the issue, a violation occurs.

Q: Can the superintendent or another staff member brief board members on an issue without violating KOMA?

A: Yes. A staff member can brief all board members on an issue and elicit their comments and concerns on the issue. The staff member cannot, however, discuss one board member’s concerns and comments with another board member in a way that makes a majority of the membership aware of and able to respond to each other’s concerns outside of the parameters of an open public meeting.

Q: What about a “chat room” for board members on our computer system?

A: Interactive electronic communication between four or more board members in this manner would constitute a meeting.

Written Memoranda

Q: What about written memoranda?

A: Although KOMA does not prohibit the exchange of written materials, it is likely that the use of written documents to prevent discussion of an issue at a public meeting would be viewed unfavorably by those who enforce KOMA.

Committee Meetings

Q: Are meetings of committees of the board subject to KOMA?

A: Yes. Because the school board is a taxing subdivision of the state which receives public funds, any body subordinate to the board, whether or not it receives public funds, is automatically covered by KOMA. K.S.A. 75-4318(a).

Meetings for Negotiations

Q: Are negotiations meetings subject to KOMA?

A: Generally, yes. The Kansas Professional Negotiations Act provides that meetings, conferences, consultations and discussions between the teachers’ organization and the board, or between their respective negotiating teams, during the course of professional negotiations are subject to KOMA. Hearings before the Secretary of Human Resources to determine the existence of an impasse are also meetings which must be open to the public. Certain meetings held in connection with the negotiation process, however, are specifically exempt from KOMA’s provisions:

  • Meetings, conferences, consultations and discussions held by the secretary for investigation of the question of the existence of impasse;
  • Meetings, conferences, consultations and discussions held in the course of and in connection with mediation and fact-finding; or
  • The meeting required between the parties after the fact-finding report is submitted to the parties. K.S.A. 72-2228(c).

Notice

Q: In what form must notice be given under KOMA?

A: The notice need not be in any particular form, but it must be personal notice. K.S.A. 75-4318(b). Contrary to popular belief, publishing notice of meetings in the local newspaper or having the time of meetings announced on a local radio station does not fulfill the notice requirements. To comply with KOMA, written notice may be mailed directly to the person requesting notice or oral notice may be given either in person or by telephone. Providing a single notice containing the list of all meetings suffices under KOMA, but the board still must provide additional notice for any meetings not included on the original list.

Q: How long is the request for notice effective?

A: Once notice is requested, the request continues in effect until it is withdrawn. The school board, at its discretion, may require that the request for notice be renewed at the beginning of each fiscal year.

Q: Can notice be discontinued?

A: Yes. However, before discontinuing notice, the school board must notify the requester that notice will be discontinued unless the person submits a new request. K.S.A. 75-4318(b)(3).

Q: Who has a duty to see that requesters get notice?

A: While the task of notification generally falls to the clerk of the board or the school district’s secretarial staff, the statutory duty to furnish notice rests with the board president or other person calling the meeting. K.S.A. 75-4318(c).

Q: Are there time restrictions on giving notice?

A: Nothing in the statutes requires that notice to requesters be given within a specific period of time. In general, the time at which notice should be given is a question of reasonableness. If the board attempts to provide notice in a reasonable manner, it substantially complies with KOMA. If, on the other hand, the board consistently gives notice five minutes before the meeting begins, a violation might be found by those charged with enforcement of the Act. If there is not time to mail written notice and a requester cannot be reached by telephone or in person, all attempts to notify the requester should be documented and maintained in a file.

Q: Must we send agendas and supporting materials to KOMA requesters?

A: No. Nothing in Kansas law requires a board of education to prepare or publish an agenda for its meetings, but in practice, most boards do. If an agenda is prepared, under KOMA it must be “made available” prior to the meeting, to any person requesting it. K.S.A. 75-4318(d). The law does not require that the agenda be sent to requesters; posting the agenda in the central office in a place   where persons who wish to see the agenda can read it or making the agenda available at other public places fulfills the requirements of the law.

An agenda is a public record. Any person may request access to or a copy of the agenda under the Kansas Open Records Act (KORA), K.S.A. 45-215, et seq. The school must comply with the request as soon as possible and may charge a reasonable fee for copying pursuant to their open records policy.

The same rules apply to materials distributed to board members with or in addition to the agenda. Some materials distributed to board members may indeed be public records. However, other materials may be exempted. Consult the statute, or the questions dealing with KORA in the “School Districts” chapter of this Handbook to determine which records are exempt from KORA requirements.

Recording Meetings

Q: Do members of the public have a right to record our meetings?

A: If anyone wants to record the meeting, KOMA requires that “the use of cameras, photographic lights and recording devices shall not be prohibited.” K.S.A. 75-4318(e). The option to record applies only to open meetings. There is no right to record executive sessions.

Q: Do we have any control over how recording devices are used?

A: Yes. The board may design reasonable rules for the use of these devices to ensure the orderly conduct of the meeting.

Meeting Out of District

Q: Can we hold a meeting out of the district?

A: While KOMA places no requirements on meeting locations, if a meeting is held in a place which is virtually inaccessible to most patrons, it is likely the courts would conclude that the choice of meeting location was designed to subvert KOMA and that a violation of the Act had occurred. Boards should attempt to hold meetings in a place that is accessible to patrons.

Meetings to Discuss Consolidation

Q: Are there any special rules for conversations about consolidation of school districts?

A: Yes. Boards considering consolidation are authorized to hold meetings to discuss and vote on issues related to consolidation within the boundaries of any of the districts involved. K.S.A. 72-708.

Executive Session

Q: When can we go into executive session?

A: Although KOMA promotes openness and requires that all formal action by a board of education be taken in open session, the Act does allow closed or executive sessions in which the board may discuss matters for which there are statutorily prescribed justifications. In each case the discussion in executive session is allowed because the privacy rights of individuals deserve protection, or because the public interest is better served by not requiring discussion of the topic in open session.

Whether to discuss an item in executive session rests with the discretion of the board. Under the statute, a board may recess into executive session for discussion using the following justifications:

  • To discuss personnel matters of non-elected personnel;
  • For consultation with an attorney for the board which would be deemed privileged in the attorney-client relationship;
  • To discuss matters relating to employer-employee negotiations;
  • To discuss confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts and individual proprietorships;
  • To discuss matters relating to actions adversely or favorably affecting a student;
  • For preliminary discussions relating to the acquisition of real property; or
  • To discuss matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. K.S.A. 75-4319(b).

Additional justifications for going into executive session listed in the statute apply only to specifically designated boards, not boards of education.

Q: Can we vote on issues in executive session?

A: Under the Kansas Open Meetings Act, any binding action taken by the board must be done in open session at an open meeting. K.S.A. 75-4318(a). You may reach consensus in executive session, but you may not vote or take binding action.

Q: Can our board hold an executive session without having a regular or special board meeting?

A: No. The board must be in open session before and after the executive session.

Nonelected Personnel

Q: May we discuss personnel policies in executive session?

A: Generally, not. The personnel exception applies only to discussion of specific individuals to protect their privacy rights. Discussion of policies for personnel in general should occur in open session.

Attorney-Client Privilege

Q: May we discuss correspondence from our attorney in executive session under the second exception?

A: Not unless the attorney is present.

Q: Does the attorney have to be physically present?

A: No. The attorney could be “present” by telephone or other means of interactive communication.

Attendance at Executive Session

Q: Who has a right to be in an executive session?

A: A board member, and only a board member, has a right to attend an executive session. Board members cannot vote to exclude other board members from an executive session.

Q: May we invite others into executive session?

A: The board may invite others to attend the executive session, but only if those invited will provide information or participate in its deliberations. Persons other than board members cannot be invited to attend the session simply as observers.

Q: Does the superintendent have a right to be in executive session with the board?

A: No. The superintendent may be invited into executive session with the board if he or she provides the board with information or recommendations. However, the superintendent has no right to be in executive session unless the board requests it.

Q: Does the clerk have a right to be in executive session with the board?

A: No. The clerk will generally be excluded from executive session but must be present to record the motion for going into executive session and the time at which the board reconvenes in open session. The clerk may be invited into executive session to provide information to the board.

Q: Can the board invite newly elected, but not yet serving, board members into executive session for the purpose of observing executive session?

A: Generally, not. Unless the newly elected board members are there for a participatory purpose, not merely observers to see how executive sessions work. They should not participate in executive sessions generally because they have no duty to keep executive session discussions confidential and have no immunity from liability for things they might say.

Confidentiality of Executive Session

Q: Should board members keep information discussed in executive session confidential?

A: Boards of education recess into executive session to protect either the public interest or the privacy interest of a particular individual. A board member who publicizes the matter addressed in executive session violates the public trust.

In matters where individual privacy rights are involved, discussion outside of executive session may result in the violation of an individual’s privacy right by the individual board member making the statements. In other words, by discussing these matters outside of the executive session, a board member may subject himself to being sued as an individual and have personal liability. The immunity which protects board members from liability for things said in executive session of the board meeting would not apply if statements are made outside of the executive session.

Q: May a board member divulge what was discussed in executive session at a due process hearing or in court?

A: Maintaining the confidentiality of an executive session should not be confused with any evidentiary privilege. The fact that the board discusses an item in executive session does not mean the substance of that conversation cannot be revealed under subpoena in hearings or court proceedings.

Penalties

Q: What are the penalties for violating KOMA?

A: Substantial civil penalties of up to $500 per violation may be ordered against individual board members. Further, any action taken by a board in a meeting which is not in substantial compliance with the requirements of the Act may be voided in an action brought by the county attorney or attorney general within 21 days of the meeting. The district court of the county in which the meeting occurs also has broad powers to issue injunctions and other equitable relief to achieve compliance with the Act. A violation of KOMA is grounds for recall of a board member under the recall statutes, or ouster from office. K.S.A. 75-4320.

Q: Will the school district indemnify me for penalties if I violate KOMA?

A: No. The liability for penalties is personal liability. The school district can neither pay the penalties nor indemnify board members for these costs.

Enforcement

Q: Who may seek enforcement of KOMA?

A: Any person, not just the attorney general or county attorney, may apply to the district court for enforcement of the Act. K.S.A. 75-4320a. However, only the Attorney General or county attorney may seek the imposition of civil penalties or the voidance of board action. K.S.A. 75-4320.

Q: How are complaints of KOMA violations submitted to the Attorney General?

A: They must be submitted on a form developed by the Attorney General. The person bringing the complaint must set forth the facts the person believes constitute a violation of KOMA and attest to the facts under penalty of perjury. K.S.A. 75-4320e.

Q: What actions may the court take in a KOMA action?

A: The district court has authority to enforce KOMA by injunction, mandamus, declaratory judgment or other appropriate order. K.S.A. 75-4320a(a). The attorney general or county or district attorney may also resolve the matter by accepting a consent judgment, which must be approved by the district court. K.S.A. 75-4320f.

Q: Who bears the burden of proof in a KOMA action?

A: The burden of proof is on the school board. K.S.A. 75-4320a(b).

Q: Who pays the court costs for a KOMA action?

A: The district court may require the school district to pay the court costs, if the court finds the KOMA was violated. These costs are assessed against the board, not individual board members. Conversely, if the court finds that the action brought by an individual was frivolous, the court may require the person seeking enforcement to pay the court costs. K.S.A. 75-4320a(c) and (d).

Consent Judgment

Q: What remedies are available if the Attorney General or county or district attorney seeks a consent judgment?

A: A consent judgment may contain any remedy available to the district court except:

  • An award of reasonable expenses;
  • Investigation costs; and
  • Attorney fees.

Investigations

Q: Who has authority to investigate alleged violations of KOMA?

A: The attorney general or county or district attorney has broad power to investigate alleged violations of both KOMA and KORA. K.S.A. 75-4320b. These powers include authority to:

  • Subpoena witnesses, evidence, documents or other material;
  • Take testimony under oath;
  • Examine or cause to be examined any documentary material of whatever nature relevant to the alleged violation;
  • Require attendance during the examination of documentary material and take testimony under oath or acknowledgement with respect to documentary material; and
  • Serve interrogatories; and
  • Administer oaths and affirmations. K.S.A. 75-4320b(a).
Q: In the investigation of an alleged violation, what if we fail to file a response to a request for information, respond to interrogatories or obey a subpoena?

A: The Attorney General or county or district attorney may ask the district court to issue an order requiring a response or compliance or grant such other relief as may be required. K.S.A. 75-4320b(c).

Consent Orders and Findings of Violation
Q: If the Attorney General finds we have violated KOMA, will it always result in court action, or are there other options?

A: Prior to filing an action in court, the Attorney General may either enter into a consent order with the school district or issue a finding of violation to the school district. K.S.A. 75-4320d.

Q: What might the consent order contain?

A: It may contain admissions of fact and any or all of the following:

  • Mandated training approved by the attorney general concerning the requirements of KOMA;
  • Imposition of a civil penalty in an amount not to exceed $250 for each violation; and
  • An agreement that the school district will comply with the requirements of KOMA; and
  • The consent order must be signed by the superintendent, any officer found to have violated KOMA, and any other person required by the attorney general. K.S.A. 75-4320d(a)(1).
Q: What might the finding of violation contain?

A: If the attorney general issues a finding of violation to school district, it may contain findings of fact and conclusions of law and require the public body or agency to do any or all of the following:

  • Cease and desist from further violation;
  • Comply with KOMA;
  • Complete training approved by the attorney general concerning the requirements of KOMA; and
  • Pay a civil penalty in an amount not to exceed $500 for each violation. K.S.A. 75-4320d(a)(2).
Q: How will the Attorney General know if we have done the things required in a consent order or finding of violation?

A: The Attorney General may require submission of proof that the requirements have been satisfied. K.S.A. 75-4320d(b).

Q: What if the district does not comply with the consent order or finding of violation?

A: The Attorney General can apply to the district court to enforce the order. However, the Attorney General must first demand compliance of the school district and afford the district a reasonable opportunity to cure its violation. K.S.A. 75-4320d(c)(1).

Q: What can the court do in this type of enforcement action?

A: Unless the court finds the Attorney General abused his discretion in entering into the consent order or issuing the finding of violation, the court will enter an order that:

  • Enjoins the school district to comply with the consent order or finding of violation;
  • Imposes a civil penalty in an amount not less than the amount ordered by the attorney general, nor more than $500 for each violation;
  • Requires the school district to pay the attorney general's court costs and costs incurred in investigating the violation; and
  • Provides for any other remedy authorized by KOMA that the court deems appropriate. K.S.A. 75-4320d(c)(3).
  • If the court finds KOMA was violated, or if the violation was not made in good faith and without a reasonable basis in fact or law, the court may also require the school district to pay the Attorney General’s reasonable attorney fees. K.S.A. 75-4320d(c)(4).
Q: How do we get a finding of violation?

A: The Attorney General must serve it on you by certified mail or like a petition in a civil lawsuit. K.S.A. 75-4320d(d).

Q: What happens with the consent orders and findings of violation?

A: The Attorney General must maintain a file of all consent orders and finding of violation and make them available for public inspection. K.S.A. 75-4320d(e). They can be accessed on the Attorney General’s website at: https://ag.ks.gov/open-government/enforcement-actions

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School Law

Chapter 2

Access to Information
Academic Achievement Information
Student Records
Records & Privacy Rights: FERPA
Personnel Records
Employment of Board Members
Teachers as Board Members
Other Employees as Board Members
Community College Trustees
Nepotism
Expenses
Oath of Office
Officers & Duties
Term of Office
Presiding at Meetings
Recall & Ouster
Recall
Ouster
Residency & Eligibility
Moving Outside the School District
Vacancies
Publishing Notice of Vacancy
Length of Appointment
Timeline for Filling a Vacancy
When a Majority of the Board Resigns

Access to Information

Academic Achievement Information

Q: How do we get information about the educational performance of students in our district?

A: The academic achievement testing program of the district should be designed to assess the educational performance of students in the district. K.S.A: 72-3219 requires a board to have an annual report on the academic achievement testing program of the district prepared and presented at a regular board meeting. The board may specify the form of the report and the manner in which it will be presented.

Student Records

Q: Do individual board members have a right to look at individual student records?

A: No. Not without the consent of the student (if the student is 18) or of the parents of the student (if the student is under 18). See the Section on student records in the Student section of this Handbook.

Records & Privacy Rights: FERPA

Q: Does the board have a right to look at individual student records?

A: In instances where the board has a legitimate educational interest, personally identifiable student records may be disclosed to the board in executive session without the consent of the student or parents, but only if board policy on the issue of student records allows for disclosure of records to school officials who have a legitimate educational interest and sets forth the criteria for determining which parties are school officials and what constitutes a legitimate educational interest. If policy does not allow for this, consent to disclosure would be required. 34 C.F.R. §§ 99.6 and 99.31.

Personnel Records

Q: Does an individual member of the school board have a right to examine a teacher’s evaluation?

A: No. K.S.A: 72-2411 allows the evaluation documents to be released to certain individuals and entities, including “the board.” Teacher evaluations may be released to the board as a whole and may be reviewed and discussed by the board as a whole in executive session, but an individual board member has no greater rights than any other citizen to access a teacher evaluation.

Q: What if the teacher gives the evaluation to a board member?

A: The teacher may disclose the evaluation document to anyone he or she chooses, including an individual board member. The law is designed to protect the teacher’s right to privacy.

Q: What about other documents in a personnel file? Does an individual board member have access to this information?

A: Again, a person’s status as a board member does not afford that person greater rights than any other citizen. The Kansas Open Records Act indicates that information in a personnel file is not required to be disclosed except for the following information: name, position, length of service in the district, salary and the individual contract. An individual board member would have access to this information, but not generally access to other information in the personnel file.

Employment of Board Members

Teachers as Board Members

Q: Is a teacher prohibited from serving on a school board?

A: Applying common law principles of incompatibility of office, in U.S.D. No. 501 v. Baker, 269 Kan. 239(2000), the Kansas Supreme Court held a teacher was disqualified from serving on the school board in the district that employed her.

Q: Is a teacher prohibited from serving on any school board?

A: No. A teacher is only prohibited from serving on the board in the district where he or she is employed. If the teacher works in one district but resides in a second district, the teacher can be a school board member in the second district.

Q: What about a retired teacher?

A: If the teacher is no longer an employee of the district, the teacher can be a board member in the district. It is serving in the dual capacity of employer/employee at the same time which creates the common law incompatibility of office.

Q: Does the holding apply to substitute teachers as well as full-time teachers?

A: Yes. The holding applies to any teacher in the school district.

Q: Does the holding prohibit a teacher from running for the school board?

A: No. A teacher can run for school board, and, if elected could serve on the board if he or she resigned from his or her employment before accepting the board position.

Other Employees as Board Members

Q: Does the holding disqualify other employees from serving on the school board?

A: Not directly. Although common law principles of incompatibility of office apply equally in this situation, there is a question whether the Kansas legislature has authorized classified employees to serve on boards by not specifically excluding them from board service in K.S.A: 72-1137. Until this question is answered by the court or the legislature, a board who allows a classified employee to serve on the board runs a risk that a court may later find such employees were disqualified from board service.

Board action involving the disqualified member might be voidable if challenged. Further, it is unlikely the school district’s insurance policies would cover actions by a disqualified member.  Because these employees are generally employees- at-will, the board can easily avoid these potential consequences by terminating existing employment or not offering further employment to board members. Alternatively, these individuals could resign from the board and retain their employment.

Q: Are any employees prohibited by statute from serving on the board of education?

A: Superintendents, assistant superintendents, principals, other supervisors, the clerk and the treasurer are statutorily prohibited from serving on the board. K.S.A: 72-1134, 72-1136 and 72-1136.

Community College Trustees

Q: May a community college trustee be employed by the college?

A: No. K.S.A: 71-1403(d) provides: “No member of the board of trustees of a community college shall be an employee of the community college.” The Attorney General has interpreted the term employee to include those persons whose service to the community college is subject to the control and direction of the community college, provided such control and direction includes directing the manner in which the services are performed, regardless whether the person receives compensation from the community college. This interpretation was based on the premise the purpose of the statute is to prevent situations in which a person as a member of the board of trustees of a community college exercises authority over employment matters regarding the person as an employee of the community college.

Nepotism

Q: May a board member’s family be employed by the district?

A: Nepotism is not forbidden by law but it may be regulated by board policy.

Q: Are nepotism laws or policies generally legal?

A: Yes. However, it is questionable if they can be applied retroactively to require an employee to be fired.

Expenses

Q: May board members be reimbursed for expenses?

A: Yes. board members may be reimbursed for their necessary expenses incurred in the performance of their official duties. K.S.A: 72-1140

Q: Most of our board members take their spouses with them to conventions and other meetings. May board members be reimbursed for expenses incurred by their spouses if their spouses accompany them on board business meetings?

A: No.

Q: Are there tax consequences for board members if they are reimbursed for expenses?

A: There may be. board members should check with their tax attorney if they have questions about specific reimbursements.

Oath of Office

Q: Must all elected board members take an oath of office?

A: Yes. You qualify for office by filing the oath of office. K.S.A: 25-2023

Q: Is there a specific oath that must be used?

A: Yes. The oath is set forth in K.S.A: 54-106 which provides:
“I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ___________. So help me God.”

Q: When must the oath of office be filed?

A: You must file an oath of office not later than 10 days after the election or five days after the issuance of your certificate of election, whichever is later. K.S.A: 25-2023

Q: Where is the oath filed?

A: You must file an oath of office with the county election officer. K.S.A: 25-2023

Q: Must an appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oath must be filed with the county election officer. K.S.A: 25-2024

Officers & Duties

Term of Office

Q: Can a board president or vice-president be elected to a term of longer than one year?

A: No. Board officers may run for re-election, without limit on the number of terms they may serve, but the term cannot be for longer than one year. K.S.A: 72-1133

Presiding at Meetings

Q: What are the duties of the board president?

A: To preside at meetings of the board and to perform other duties as required by law. K.S.A: 72-1133

Q: If the president is absent from a meeting, the vice-president presides. Who presides if they both are absent?

A: The remaining board members select a member to sit in the capacity of president for that meeting. K.S.A: 72-1133

Q: Who presides at the July organizational meeting before the new president is elected?

A: The board president remains board president until his or her successor is elected and should preside. If the board president is no longer on the board, the vice-president or a member selected to serve in the capacity of president should preside.

Recall & Ouster

Methods for Removing a Board Member from Office

Q: Can a majority of the school board remove another member of the board?

A: No. The means by which a board member may be removed from office are by recall petition and vote pursuant to K.S.A: 25-4318, et seq., or by ouster pursuant to K.S.A: 60-1205

Recall

Q: Who may start a petition for recall of a board member?

A: Any registered elector of the district, using the form prescribed in K.S.A: 25-4320

Q: Who may sign a recall petition?

A: Any registered elector of the election district from which the board member was elected. Depending on the voting plan the district uses, this may include the entire school district or just a member district.

Q: What constitutes grounds for recall?

A: Conviction of a felony, misconduct in office or failure to perform duties prescribed by law. K.S.A: 25-4302(a)

Q: What does misconduct in office mean?

A: A violation of law by the board member that impacts the board member’s ability to perform the official duties of the office. K.S.A: 25-4302(b)

Q: Who determines if the grounds for recall stated in the recall petition are sufficient?

A: The county or district attorney of the county where the petitions are required to be filed, in this case the home county of the school district. K.S.A: 25-4322(b) and 25-4318. In Unger v. Horn, 240 Kan. 740 (1987), the Supreme Court noted that the statute requires specificity when stating grounds for recall. For instance, a petition which alleges “misconduct in office” is insufficient, but one which alleges “violations of the Kansas Open Meetings Law,” specifying the misconduct, is sufficient.

Ouster

Q: May a board member be removed from office other than through recall?

A: Yes. A board member may be ousted from office pursuant to K.S.A: 60-1205

Q: What are the grounds for ouster?

A: A board member can be ousted from office if he or she:

  • Willfully engages in misconduct while in office;
  • Willfully neglects to perform any duty required by law;
  • Demonstrates mental impairment such that the person lacks the capacity to manage the office held; or
  • Commits any act constituting a violation of any penal statute involving moral turpitude. K.S.A: 60-1205
Q: Who can start proceedings to oust a board member from office?

A: The County Attorney or Attorney General, with or without a written complaint. K.S.A: 60-1206

Q: Is there an election on an ouster proceeding?

A: No. A petition is filed in district court by the County Attorney or District Attorney. The board member has a right to a full hearing before the court on the application for ouster. K.S.A: 60-1207

Residency & Eligibility

Moving to Another Member District in the School District

Q: One of our board members from member district #1 moved to member district #2. May he remain on the board?

A: Yes. So long as he still resides in the school district he may complete his term. If he desires to run again, however, he must run for a seat in member district #2 or for the at-large position. He cannot continue to run for the member district #1 seat if he no longer lives in that member district. K.S.A: 25-2022A

Moving Outside the School District

Q: One of our board members moved out of the school district. May she continue to serve on the board for the remainder of her term?

A: Probably not. If the board member has changed her residence, and the change is not temporary, she cannot continue to serve.

Q: If she refuses to resign, when does a vacancy occur?

A: A vacancy in the membership of the board is deemed to exist as of the date that the county election officer determines that a change of residence has occurred. Talk to the county election officer about the situation.

Q: One of our board members is getting divorced. He is looking for a place to live in the district but has rented an apartment in an adjoining district at present. He indicates this is a temporary situation and that he will move back to the district as soon as a rental property becomes available. Can he remain on the board?

A: If the board member has “established residence” outside the district, a request could be made to the county election officer to determine that a vacancy exists. The key question, however, is whether the board member has established a new residence. Residence requires two elements: (1) bodily presence at a location, and (2) an intent to remain there permanently or for an indefinite period of time. To constitute a change of residence, the board member must physically move to the new abode and intend to remain there.

In residency cases, courts examine all the surrounding circumstances, including the intent of the person to determine if residency is established. In Gleason v. Gleason, 159 Kan. 448 (1945), the court noted that when a person goes to another place for a temporary purpose and does so with the intention of returning to his fixed home, that the temporary absence does not effect a change of residence. In Perry v. Perry, 5 Kan. App.2d 636 (1981), the court concluded that one does not lose one’s residence by mere physical presence elsewhere unless that presence is accompanied by an intention to abandon the old residence and adopt the new. Further, once established, a residence is presumed to continue until a new residence is established.

If a board member intends to live outside the district only until he is able to find a place to rent back in the district, it would appear that a change of residence, in the legal sense of the word, does not occur. However, because the question is one of both fact and intent, changes in any of the facts or his intent, could result in a change of residence.

Vacancies

Publishing Notice of Vacancy

Q: One of our board members resigned. How do we fill the position?

A: You may appoint a replacement. When the vacancy occurs, the board should publish notice in the newspaper that a vacancy has occurred, and that the vacancy will be filled by appointment not sooner than 15 days after the publication. K.S.A: 25-2022

Length of Appointment

Q: Can someone be appointed to fill most of a full four-year term?

A: No. If the vacancy occurs prior to May 1 of an odd numbered year, a year in which there will be a general election for board members in November, the appointee can serve only until the second Monday in January after the following general election as an appointee. In the election in November, there must be an election “to fill the unexpired term.” The appointee and any other qualified elector may run in the election. Whoever is elected takes office on the second Monday in January following the general election for a term of two years.

Interviewing Applicants

Q: Can the board interview or discuss applicants for vacant board positions in executive session?

A: No. No exception in the Kansas Open Meetings Act authorizes the board to recess to executive session to discuss applicants for board positions. An exception exists with respect to non-elected personnel, but board members, even those who are appointed, are not non-elected personnel.

Q: May we ask applicants not to sit in on interviews of other applicants for the vacant board positions?

A: You may ask, but you cannot require that they absent themselves from the meeting. Like any other member of the public, an applicant for a position on the board has a right, under the Kansas Open Meetings Law, to watch the board meeting.

Timeline for Filling a Vacancy

Q: How soon after a vacancy occurs must we advertise and fill the position?

A: The law sets no timelines, but the board should act in a reasonable manner. Generally, you should try to fill vacancies as soon as possible.

Q: If a board member announces that he or she intends to resign in another month or two, can we publish the notice now and be ready to appoint someone when he or she actually resigns?

A: No. The law says you must publish notice after the vacancy occurs. Until the board member actually resigns, there is no vacancy.

When a Majority of the Board Resigns

Q: If it takes four board members to take any action, what do we do if four or more board members resign?

A: The clerk of the board must certify the vacancies to the governor. The governor then appoints as many board members as necessary to bring the total to four. Those four must appoint three others to fill the remaining vacancies, as they would fill any other vacancy on the board. In this case the statute requires the vacancies be filled within six months. K.S.A: 25-2022b

Q: Our board recently appointed a board member to fill the unexpired term of a member who resigned. Must the appointed member take an oath of office, and if so, where must it be filed?

A: Yes. The oat

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Chapter 3

Chapter 3. Discrimination Laws
Age Discrimination in Employment Act of 1967
What’s Prohibited?
Who’s Protected?
Age as a Factor in Employment Decisions
Standard of Proof
Specific Defenses to an ADEA Claim
Court Actions
Remedies
Americans with Disabilities Act of 1990
What’s Prohibited?
Major Life Activities
Substantially Limit
Qualified Individual
Essential Functions of the Position
Pre-Employment Inquiries
Reasonable Accommodation
Leave
Reassignment
Refuse to Accommodate
Public Services
Auxiliary Aids and Services
Program Accessibility
Self-Evaluation
Other Requirements
Claims under ADA
Remedies
Equal Pay Act of 1963
What’s Prohibited?
Application
Enforcement
Standard of Proof
Defenses
Court Action
Remedies
Penalties
What’s Prohibited?
Genetic Information
Genetic Tests
Genetic-Based Impairments
Health Benefits
Enforcement
Remedies
Requesting Genetic Information
Medical Examination
Wellness Programs
Warning to Employee Required
Confidentiality Required
Filing a Charge
Kansas Human Rights Commission
Complaints
Responding to the Complaint
Mediation
Investigation
Probable Cause and Conciliation
KHRC Hearing
Dismissal of a Complaint
Remedies
Posting Notice of Rights
Penalties
Age Discrimination
Section 504 of the Rehabilitation Act of 1973
What’s Prohibited?
Individual with a Disability
Major Life Activity
Qualified Individual with a Disability
Reasonable Accommodation
Protections for Students and Patrons
Enforcement
Remedies
Steps to Ensure Compliance
Title VI of the Civil Rights Act of 1964
What’s Prohibited?
Enforcement
Remedies
Steps to Comply with Title VI
Title VII of the Civil Rights Act of 1964
What’s Prohibited?
Retaliation
Disparate Treatment and Disparate Impact
Discrimination on the Basis of Sexual Preference or Gender Identity
Discrimination on the Basis of Religion
Enforcement
Remedies
Title VII: Sexual Harassment
Definition of Sexual Harassment
School District Liability for Harassment
By Supervisory Personnel
By Non-Supervisory Co-Workers or Non-Employees
Paramour Preferences
Sexual Harassment Policy Components
Corrective Action
No Application to Students
Steps to Comply with Title VII
Employee on Student Harassment
Title IX of the Education Amendments of 1972
What’s Prohibited?
Application
To Employees
To Students
Remedies
Steps to Comply with Title IX

Age Discrimination in Employment Act of 1967

What’s Prohibited?

Q. What does the ADEA prohibit?

A. ADEA prohibits discrimination on the basis of age in all aspects of the employment relationship, including compensation, terms, conditions, or privileges of employment. Hiring and promotion decisions, including decisions about allowing an employee to achieve tenure, cannot be predicated on age.

Who’s Protected?

Q. Which employees are protected by the Age Discrimination in Employment Act?

A. Employees who are 40 and older are protected from discrimination in employment on the basis of their age by the Age Discrimination in Employment Act of 1967. Applicants for employment are protected as well as actual employees.

Q. Are any employees exempt from coverage?

A. Yes. Some are exempted from coverage under ADEA. The Act does not cover a person elected to public office, a member of that person’s staff or bona fide executives or high policymakers, such as a superintendent or president of a college. See EEOC v. Board of Trustees, 723 F.2d 509 (6th Cir. 1983).

Enforcement

Q. Who enforces the ADEA?

A. When enacted, the ADEA was enforced by the Department of Labor. In 1979 enforcement functions were transferred to the Equal Employment Opportunity Commission (EEOC).

Q. What procedures are followed in investigating ADEA claims?

A. Generally, the procedures outlined for Title VII claims are followed. However, ADEA allows for concurrent rather than sequential state and federal administrative jurisdiction. A complainant may file charges concurrently with Kansas Human Rights Commission (KHRC) and EEOC.

Application to Schools

Q. Does the ADEA apply to schools?

A. The ADEA applies to private employers with 20 or more employees and to state and local governments. ADEA applies to employers, including public schools, employment agencies and labor organizations.

Age as a Factor in Employment Decisions

Q. Does the ADEA prohibit mandatory retirement at a certain age?

A. The ADEA generally prohibits establishing a mandatory retirement age for any class of employees. While an institution may establish incentives for voluntary retirement, in most cases the courts have concluded mandatory retirement based solely on age violates the ADEA. Although ADEA frowns on mandatory retirement requirements, the law does allow for bona fide employee benefit plans which may include a voluntary early retirement incentive plan consistent with the purposes of ADEA. If early retirement is offered, it must be offered to all eligible employees. The key challenge to early retirement programs is whether retirement is actually voluntary. The alternative to “voluntary” retirement cannot be such that the retirement is, in fact, coerced.

Q. Can age ever be a factor considered in employment decisions?

A. Yes. The ADEA allows age to be a consideration in employment decisions where age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer. To establish age as a lawful factor in employment decisions involving transportation employees, a school must prove:

  • The existence of a job qualification reasonably necessary to the essence of the school’s business; and
  • The school is compelled to rely on age as a proxy for safety-related considerations.
Q. Can we require bus drivers be under a certain age for safety reasons?

A. Maybe, but the courts are split on this issue. Instead of relying on age, educational institutions are well-advised to require physical examinations of drivers, along with stress tests, driving tests, and tests to assess dynamic visual acuity. The National Highway Traffic Administration’s manual recommends the following:

  • No person over the age of 65 should be hired to be a bus driver;
  • Those who reach the age of 65 while employed may be permitted to drive as long as health and operating skills permit;
  • Physical examinations for drivers over 65 should be required more frequently than for younger drivers. At least once every six months is recommended.
Q. Does granting credit on a salary schedule for prior experience violate the ADEA?

A. Granting credit on a salary schedule for prior experience does not violate the ADEA. See Wooden v. Board of Educ., 931 F.2d 376 (6th Cir. 1991).

Standard of Proof

Q. What does an individual have to show to prove a claim of age discrimination?

A. The standards of proof developed in Title VII litigation are applied to ADEA claims. For a prima facie age discrimination case, an employee must show:

  • He or she is in the protected age group;
  • He or she was unfavorably affected by an employment action;
  • At the time of the adverse action, he or she was performing his or her job at a level that met the employer’s legitimate expectations; and
  • Following the adverse employment action, he or she was replaced by someone of comparable qualifications outside the protected class.
Q. Do low ratings in an evaluation indicate an individual is not meeting the employer’s expectations?

A. Probably not. The Tenth Circuit has required only a minimal showing that performance is satisfactory to meet the prima facie burden, suggesting evidence of performance issues can be raised by the school in rebutting the prima facie case. Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991).

Q. Does the employee win if they can just establish a prima facie case of discrimination?

A. No. Once the plaintiff has established a prima facie case of age discrimination, the employer must produce evidence of a nondiscriminatory reason for the employment action. The burden then returns to the employee to show these reasons are not true, but merely a pretext for age-based discrimination. The ultimate burden of persuasion remains at all times with the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Q. What if an employee quits before any adverse action occurs? Can they bring an action under the ADEA?

A. Probably. As in other types of employment discrimination actions, the adverse employment action may be a “constructive discharge.” The standard used for determining if a constructive discharge occurred is whether a reasonable person in the employee’s position would have felt compelled to resign. Hirschfeld v. New Mexico Corrections Dep’t., 916 F.2d 572 (10th Cir. 1990). In Schartz v. Unified School Dist. No. 512, 953 F. Supp. 1208 (D. Kan. 1997), the court noted “intolerable working conditions” do not require harassment or physical discomfort but may be created where an employer makes known its desires to be rid of a particular employee. Additionally, the court noted a claim of constructive discharge may be based on the fact an employee was given a choice between retirement or termination.

Specific Defenses to an ADEA Claim

Q. Are there any specific defenses to an ADEA claim?

A. Yes. The ADEA provides several defenses found at 29 U.S.C. § 623(f). A claim for age discrimination will not succeed where:

  • Age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer;
  • The differentiation is based on reasonable factors other than age;
  • The individual is discharged or otherwise disciplined for good cause;
  • The action is taken in observation of the terms of a bona fide seniority system that is not intended to evade the purpose of ADEA. The seniority system may not require or permit the involuntary retirement of any individual because of age; or
  • The action is taken in observation of the terms of a bona fide employee benefit plan, but the employer’s contribution for an older worker must be no less than that made on behalf of a younger worker or pursuant to a voluntary early retirement incentive plan consistent with the purposes of ADEA.

Court Actions

Q. When can an action in court be brought under ADEA?

A. No civil action can be brought under ADEA until 60 days after a charge is filed with EEOC. Upon dismissal of the charge or termination of the EEOC proceedings, EEOC must notify the individual who then has 90 days in which to commence a civil action. In Kansas, an age discrimination claimant must file a complaint with KHRC and wait 60 days before filing a federal civil action. Filing of the federal action operates to stay the state administrative proceeding.

Q. Why is the EEOC sometimes a party in lawsuits involving the ADEA?

A. The EEOC may bring civil actions under ADEA. The individual’s right to bring a civil action ceases upon the commencement of an action by the EEOC. However, if the individual commences action prior to the EEOC action, the action remains viable. EEOC may either file a separate action or intervene in the individual action. ADEA claimants who litigate their individual claims in an individual action cannot obtain individual relief in subsequent EEOC actions based on the same claims.

Remedies

Q. What remedies are available under the ADEA?

A. ADEA remedies are enforced through provisions of the Fair Labor Standards Act which provide employers are liable for such legal or equitable relief as may be appropriate, “including without limitation judgments compelling employment, reinstatement or promotion.” 29 U.S.C. § 626(b). Courts, including the Tenth Circuit, have generally concluded that compensatory damages are not available under ADEA, but some courts have allowed for the recovery of compensatory damages. See Moskowitz v. Trustees of Purdue University, 5 F.3d 279 (7th Cir. 1993); Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987). Liquidated or double damages may be awarded when the violation is found to be willful.

Q. When are actions considered willful?

A. An employer’s actions are willful if, “the employer...knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” TWA v. Thurston, 469 U.S. 111, 126 (1985).

Statute of Limitations

Q. What is the statute of limitations for bringing an ADEA action?

A. The statute of limitations is two years, except in cases of willful violations where it is three years.

Waiver of Rights in Settlement Agreements

Q. Can employees waive their right to bring an ADEA action as part of a settlement agreement?

A. Yes. But the waiver must be knowing and voluntary and must comply with the specific requirements in the law. 29 U.S.C. § 626(f).

Q. What requirements must the waiver meet?

A. At a minimum the waiver must:

  • Be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
  • Specifically refer to rights or claims arising under ADEA;
  • State the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • Provide the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • Advise the individual in writing to consult with an attorney prior to executing the agreement;
  • Give the individual a period of at least 21 days within which to consider the agreement;
  • Provide that for a period of at least seven days following the execution of the agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired.

Americans with Disabilities Act of 1990

What’s Prohibited?

Q. What does the ADA prohibit?

A. The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of an individual’s disability in employment, public services and transportation, public accommodations and telecommunications. The expressed purpose of the Act is to establish a clear and comprehensive prohibition of discrimination on the basis of disability.

As public entities, public school districts who receive federal funding have been prohibited from discriminating on the basis of handicap or disability for nearly 20 years under Section 504 of the Rehabilitation Act of 1973. Requirements under the ADA are strikingly similar to those under Section 504, but the ADA applies to the private, as well as the public sector.

Q. What does the ADA prohibit in terms of employment?

A. The ADA prohibits discrimination on the basis of disability against a qualified individual in application procedures, hiring, advancement, discharge, compensation, job training or other terms and conditions of employment.

Individual with a Disability

Q. Who is an individual with a disability under the ADA?

A. An individual with a disability is a person with physical or mental impairment that substantially limits major life activities, a person who has a record of having such an impairment, or a person who is regarded as having such an impairment.

Q. Are there any exclusions?

A. “Disability” does not include current illegal drug use, homosexuality, bisexuality, transvestitism, exhibitionism, gender identity disorders, sexual behavior disorders, compulsive gambling, kleptomania, minor or trivial impairments, simple physical characteristics, or environmental or cultural disadvantages.

Major Life Activities

Q. What are major life activities?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Substantially Limit

Q. When does an impairment substantially limit the ability to work?

A. When a person is substantially limited in their ability to perform the functions of the job they desire. An individual need not be precluded from performing a broad class of jobs.

Q. Are mitigating measures considered in determining if there is a substantial limitation?

A. No. The ADA Amendments of 2008 forbid consideration of mitigating measures other than eyeglasses.

Q. What about temporary conditions?

A. An impairment need not be permanent to be a disability under ADA. However, broken bones and illnesses that are temporary in duration normally will not be considered a disability for ADA purposes. The nature, severity and actual or expected duration of the disability and the resulting impact of the impairment on the individual’s ability to perform major life activities are factors which must be considered in determining if a temporary condition qualifies as a disability for ADA purposes.

Qualified Individual

Q. For employment purposes, who is a qualified individual?

A. A qualified individual is a disabled individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.

Essential Functions of the Position

Q. What are essential functions of the employment position?

A. The ADA does not define essential functions of the employment position. The regulations suggest that such functions must be determined in the context of the entire work environment and be consistent with business necessity. They must be tasks other than those which bear only a marginal relationship to the job in question. In determining essential job functions, consideration will be given to the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job.

Pre-Employment Inquiries

Q. May we ask job applicants about their disabilities?

A. An employer may not make a pre-employment inquiry on an application form or in an interview as to whether, or to what extent, an individual is disabled. You may ask a job applicant whether he or she has the ability to perform particular job functions.

Reasonable Accommodation

Q. What are our obligations to accommodate?

A. Under the ADA an employer must make reasonable accommodations to known physical or mental limitations of a disabled individual, unless the accommodations would impose an undue hardship on the operation of the school. Reasonable accommodation includes making existing facilities readily accessible and usable, and may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, adjustment or modifications of training materials or policies, or the provision of qualified readers or interpreters.

A. An employer is only required to accommodate a known disability. If the individual does not request an accommodation, the employer is not obligated to provide one. However, the EEOC enforcement guidance states an employer should initiate the accommodation process if the employer knows or has reason to know that an employee is disabled, is experiencing problems because of a disability, or suffers from a disability that prevents him from asking for an accommodation.

Leave

Q. Is granting leave a reasonable accommodation?

A. An allowance of time for medical care or treatment may constitute a reasonable accommodation. However, if the employee gives no indication of when and under what conditions he might return to work, an indefinite unpaid leave is not a reasonable accommodation. See Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th Cir. 1996).

Reassignment

Q. Is reassignment to an open position required?

A. It depends. The ADA may require an employer to reassign an employee to a vacant position where the disability precludes performing the essential functions of the current job. However, reassignment is not required if other reasonable accommodations would allow the employee to continue working in his current job. The employer is not required to create an opening where none exists. Further, the employee must be qualified to perform the essential functions of the vacant job.

Q. How do we determine an appropriate accommodation?

A. Each school should establish a procedure for determining reasonable accommodations for an employee. The process should be flexible, interactive, and include input from the employee. An accommodation must be reasonable but need not be the best accommodation.

Refuse to Accommodate

Q. May we ever refuse to accommodate?

A. Each school may refuse to accommodate if the individual is not otherwise qualified for the job, if the accommodation would eliminate an essential function of the job, or if the accommodation would impose undue hardship. The school has the burden to prove undue hardship.

Undue hardship may be shown if the needed accommodation would result in significant difficulty or excessive cost to the school. Additionally, if the employment of the individual would result in a threat to the health or safety of the employee or others and the significant risk of substantial harm cannot be avoided through a reasonable accommodation, accommodation may not be required.

Enforcement

Q. Who enforces the ADA employment provisions?

A. The employment provisions of the Act are enforced by the EEOC pursuant to Title VII of the Civil Rights Act of 1964.

Public Services

Q. What are our obligations under ADA with regard to public services?

A. Title II of the ADA provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Q. What does the Act mean by public services?

A. Public services include any service, program, or benefit which you provide. In addition to educational services for students, this may include sports activities, plays, assemblies, adult education programs, board meetings, and other programs or activities.

Q. For public services, who is a qualified individual?

A. A qualified individual with a disability is one who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication or transportation barriers; or the provision of auxiliary aids and services.

Auxiliary Aids and Services

Q. What are auxiliary aids and services?

A. Auxiliary aids and services may include providing qualified interpreters, note takers, written materials or telecommunication devices for the deaf (TDDs); providing qualified readers, taped texts, audio recordings, Brailled materials; acquiring or modifying equipment and devices; and other similar services or actions. In furnishing appropriate auxiliary aids, the school must give primary consideration to the request of the individual requesting the aid. Personal devices need not be provided.

Program Accessibility

Q. What obligation do we have to make programs accessible?

A. A service, program, or activity must be operated in a manner so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities. In existing facilities this may be accomplished through redesign of equipment, reassignment of services to accessible sites, the assignment of aides, the delivery of services at alternate accessible sites, or any other method which makes services accessible. A school district is not required to make changes which would result in a fundamental alteration in the nature of the service, program or activity, make structural changes in existing facilities where other methods are effective in achieving compliance, or make changes which would result in undue financial and administrative burdens. New construction must meet federal accessibility standards.

Q. What federal accessibility standards do we follow?

A. Either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines (ADAAG). You must choose one of these two and follow it in all aspects.

Self-Evaluation

Q. Are there any reporting requirements?

A. Each school was required to complete a self-evaluation which consisted of a review of services, policies and practices and their effects on individuals with disabilities, a consideration of necessary modifications, an opportunity for interested persons to participate in the process by submitting comments shortly after ADA was enacted in 1990.

Q. Are we required to keep the self-evaluation available to the public?

A. While that may be the best practice, the law required schools to maintain the self-evaluation for only three years.

Other Requirements

Q. Must we take any other actions?

A. A school must designate a person responsible for compliance with the ADA provisions, adopt a grievance procedure for dealing with complaints under the Act, and post notice of rights under the Act.

Q. What are our obligations with regard to communications?

A. TDDs or equally effective telecommunication systems must be used to communicate with individuals with impaired hearing or speech.

Schools must post the international symbol for accessibility at each accessible entrance to buildings. Schools must provide signs at all inaccessible entrances directing users to accessible entrances or to an accessible location where they can obtain information.

Q. Do we need to do anything with our school buses under the transportation provisions?

A. No. Buses used for public transit must meet certain standards, but school buses were specifically exempted from the transportation provisions.

Claims under ADA

Q. How are claims brought under ADA?

A. ADA incorporates the Title VII administrative and judicial enforcement procedures: a disabled individual may pursue a civil action after filing a timely discrimination charge with the EEOC or KHRC.

Q. Can a person who is qualified for disability benefits under Social Security claim to be a qualified individual with a disability under the ADA?

A. Yes. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795(1999), the Supreme Court held application for and receipt of Social Security Disability Insurance benefits does not automatically stop the recipient from pursuing a claim under the ADA.

Q. Can individuals be sued under ADA?

A. The Tenth Circuit has held ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statute. Butler v. City of Prairie Village Kansas, 172 F.3d 736 (10th Cir. 1999).

Remedies

Q. What remedies are available under ADA?

A. Back pay, reinstatement, injunctive relief, and other equitable remedies are generally available. Compensatory and punitive damages may be available in cases of intentional disparate treatment. However, an employer can avoid liability for damages if it shows it made a good faith effort, in consultation with the employee, to identify and make a reasonable accommodation to a known disability. The damage caps under Title VII apply to ADA damages as well. A prevailing party is entitled to reimbursement for attorney fees and litigation expenses.

Equal Pay Act of 1963

What’s Prohibited?

Q. What does the Equal Pay Act prohibit?

A. Sex discrimination in payment of wages and other compensation by private employers, as well as by federal, state, and local governments. The Act requires equal pay in jobs substantially equal in skill, effort, and responsibility and performed under similar working conditions in the same establishment. The Equal Pay Act, which is actually a part of the Fair Labor Standards Act, prohibits an employer from maintaining wage differentials based upon sex and prohibits a labor organization from causing or attempting to cause an employer to discriminate in violation of the act. The EPA applies only to sex discrimination in the form of unequal pay for equal work. Retaliation against an employee for filing a complaint or testifying in a proceeding is prohibited.

Q. How does the EPA differ from Title VII?

A. The scope of the EPA is far more restrictive, proscribing only the payment of unequal wages while Title VII proscribes all practices which create inequality in employment opportunities due to discrimination on the basis of sex. While the EEOC and some courts have concluded that a violation of EPA is also a violation of Title VII, the courts have not always agreed. In Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989), the court noted that the burden of proof is different under the statutes. Under Title VII, the burden is on the plaintiff at all time to show discriminatory intent. The EPA does not require proof of discriminatory intent.

Application

Q. Does the EPA apply to public schools and colleges?

A. Yes. When the EPA was enacted, coverage did not extend to public schools or colleges in any form. In 1966, the EPA was amended to include employees of public schools, bringing non-certificated staff within its coverage. Additional amendments in 1972 eliminated the professional employee exemption, bringing teachers and administrators within the EPA coverage as well.

Q. Do courts look at a single building or the entire district in evaluating EPA claims?

A. For purposes of EPA application, the entire school district, not a single building, is considered the establishment. See, e.g. Brennan v. Goose Creek Consolidated Independent Sch. Dist., 519 F.2d 53 (5th Cir. 1975). At the college and university level, courts have reached differing results. See Alexander v. University of Michigan-Flint, 509 F. Supp. 627 (E.D. Mich.1980) (single campus) and EEOC v. Maricopa County Community College District, 29 FEP 383 (D. Ariz. 1982), aff’d on other grounds, 736 F.2d 510 (9th Cir. 1984) (all campuses).

Enforcement

Q. Who enforces the Equal Pay Act?

A. The EEOC is responsible for enforcement. Lawsuits may be filed by the EEOC or by the aggrieved individual. No charge need be filed with EEOC as a precondition to private suit. EEOC has authority to investigate to determine if the EPA is being violated on its own volition or at the request of a person who believes the Act is being violated. A school cannot have liability under the EPA if it relies in good faith on any written regulation, order, ruling, interpretation, practice or enforcement policy of the EEOC.

Standard of Proof

Q. What must an employee prove to show a violation of the EPA?

A. Generally, to prove a violation of the EPA an employee must show that a male and female who work in the same establishment, performing equal work are paid different wages on the basis of sex. To be considered “equal” the work performed must be “substantially equal” in skill, effort and responsibility and performed under similar working conditions.

Defenses

Q. What are an employer’s defenses?

A. In defending an action under the EPA, a school district employer may rebut those elements by showing that skill, effort or responsibility are not equal in the two positions or by showing that the work is not performed under similar working conditions. Additionally, the school district may prove that the unequal pay resulted because of a permitted exception under the law. Those exceptions include:

  • Wages paid pursuant to a seniority system;
  • Wages paid pursuant to a merit system;
  • Wages paid pursuant to a system that measures the quantity or quality of goods produced; or
  • Unequal pay based on a factor other than sex.

Court Action

Q. Can an individual bring an action in court under the EPA?

A. Yes. An employee may bring a civil action directly in any federal court. The action may be individual or on behalf of others who are similarly situated.

Q. Is exhaustion of administrative remedies required?

A. Exhaustion of administrative remedies is not required, nor is an attempt at EEOC conciliation.

Q. Can EEOC bring action on its own?

A. Yes. EEOC may bring civil actions on behalf of an employee or employees to recover unpaid wages and liquidated damages. EEOC may also seek injunctive relief for all affected employees.

Q. What is the statute of limitations for EPA actions?

A. Civil actions under the EPA must be commenced within two years of their accrual. In the case of “willful” violations, i.e., the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the EPA, civil actions may be commenced within three years of their accrual.

Remedies

Q. What are the remedies for EPA violations?

A. The EPA is part of the Fair Labor Standards Act. An employer who violates FLSA provisions is liable for unpaid wages or overtime compensation and such legal or equitable relief as may be appropriate including employment, reinstatement and promotion. 29 U.S.C. § 206(d)(3). An employee’s wage rate cannot be reduced to remedy an unlawful differential in pay. 29 U.S.C. § 206(d)(1) and 29 CFR § 1620.12. An amount equal to the amount of wages determined to be owing for lost wages or overtime compensation are available in EPA cases where the school cannot show it acted in good faith and had reasonable grounds for believing it was not violating the EPA.

Penalties

Q. Are there any penalties for employers who willfully violate the EPA?

A. Yes. A person who willfully violates the EPA is subject to a $10,000 fine and up to six months imprisonment, or both, for a second or subsequent conviction. 29 U.S.C. § 216(a).

Genetic Information Nondiscrimination Act

What’s Prohibited?

Q. What does the Genetic Information Nondiscrimination Act (GINA) prohibit?

A. GINA prohibits the use of genetic information in employment. It restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.

Genetic Information

Q. What is “genetic information”?

A. Under the law, “genetic information” includes:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Family medical history;
  • Requests for, and receipt of, genetic services by an individual or a family member; and
  • Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.

Genetic Tests

Q. What are examples of genetic tests?

A. Tests used to determine whether an individual has a certain genetic variant associated with an increased risk of acquiring a disease in the future are genetic tests. For example, a test to determine whether an individual has the genetic variants associated with a predisposition to certain types of breast cancer is a genetic test. Carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring are additional examples of genetic tests.

Q. What are some examples of tests that are not genetic tests?

A. Examples of tests that are not genetic tests include an HIV test, a cholesterol test, or a test for the presence of drugs or alcohol.

Genetic-Based Impairments

Does GINA protect individuals from discrimination on the basis of impairments that have a genetic basis?

A. No. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. However, other laws, such as the Americans with Disabilities Act, may provide protection.

Harassment and Retaliation

Q. Does GINA prohibit harassment?

A. Yes. GINA prohibits a wide range of discrimination, including harassment.

Q. Does GINA prohibit retaliation?

A. Yes. GINA includes a specific provision prohibiting employers from retaliating against employees who oppose employment practices made unlawful by GINA or who participate in an investigation, proceeding, or hearing under GINA.

Health Benefits

Q. May an employer use genetic information about an applicant or employee to make decisions concerning health benefits?

A. No. Health benefits are part of the compensation, terms, conditions, and privileges of employment.

Enforcement

Q. Who enforces GINA?

A. The EEOC is responsible for enforcement.

Remedies

Q. What are the remedies for a violation of GINA Title II?

A. The same remedies available under Title VII of the Civil Rights Act of 1964 are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs. Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA. Punitive damages are not available against federal, state, or local government employers.

Requesting Genetic Information

Q. Are there any situations in which a small business may obtain genetic information without violating GINA?

A. Yes, there are six narrow exceptions to the rule that an employer may not request, require, or purchase genetic information about an applicant or employee. Those that may apply in a public school setting include:

  • Where the information is acquired inadvertently;
  • As part of health or genetic services, including wellness programs, provided on a voluntary basis;
  • In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies; and
  • When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources.

Medical Examination

Q. May an employer ask for family medical history as part of a medical examination of a job applicant or employee?

A. No. Although an employer may conduct medical examinations after making a job offer or during employment as permitted by the Americans with Disabilities Act (ADA), the examination may not include collection of family medical history. An employer must tell its health care providers not to collect genetic information as part of an employment-related medical exam, and, if it finds out that family medical histories are being collected, the employer must take measures within its control to prevent this from happening in the future.

Wellness Programs

Q. What does GINA say about the acquisition of genetic information when an employer offers health or genetic services, like a wellness program?

A. GINA and the final rule say that an employer may acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior written authorization that is both voluntary and knowing. Individualized genetic information can be provided to the individual receiving the services, but genetic information may only be provided to the employer in aggregate form. Further, while employers may offer certain kinds of financial inducements to encourage participation in health or genetic services, they may not offer an inducement for individuals to provide genetic information.

Warning to Employee Required

Q. What should an employer do to comply with GINA when lawfully requesting health-related information from an employee?

A. When an employer makes a request for health-related information to support an employee’s request for reasonable accommodation under the ADA or a request for sick leave, it should warn the employee and/or health care provider not to provide genetic information. The warning may be in writing or oral. The regulations suggest language such as the following may be used:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Q. What if, even after the warning, we still get information that could be considered genetic information?

A. If this type of warning is provided, any acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.

Q. How often must the warning be provided?

A. It is best to provide the warning each time health-related information is requested.

Confidentiality Required

Q. Does GINA have rules on confidentiality?

A. Yes. An employer in possession of genetic information about applicants or employees must treat it the same way it treats medical information. It must keep the information confidential and, if in writing, apart from other personnel information in separate medical files. However, genetic information may be kept in the same file as medical information subject to the ADA.

Filing a Charge

Q. How does an employee file a charge under GINA?

A. An individual who believes that his or her employment rights have been violated on the basis of genetic information may file a “charge of discrimination” with the EEOC within 180 days from the date of the alleged violation, or within 300 days if a state or local agency enforces a law that prohibits employment discrimination on the basis of use or acquisition of genetic information or genetic testing.

Kansas Act Against Discrimination

Q. What is the Kansas Act Against Discrimination (KAAD)?

A. It is the Kansas law that prohibits discrimination on the basis of race, religion, color, sex, disability, familial status, national origin or ancestry in employment and public accommodations. K.S.A. 44-1001, et seq.

Q. To whom do the Kansas Act Against Discrimination apply?

A. Any employer who employs four or more persons, agents of employers and labor organizations, and all political subdivisions of the state, including school districts and community colleges.

Kansas Human Rights Commission

Q. Who administers the KAAD?

A. The Kansas Human Rights Commission (KHRC).

Q. Who serves on the KHRC?

A. The commission consists of seven members appointed by the governor. By law two must be representatives of industry, two must be representatives of labor, one must be licensed to practice law, one must be a representative of the real estate industry, and one is appointed at large.

Complaints

Q. How do complaints of discrimination originate with the KHRC?

A. Any person who believes that they have been discriminated against in employment or in a public accommodation may file a verified complaint with the KHRC or have an attorney file the complaint on their behalf. The commission itself or the attorney general may also file complaints.

Q. Can the complaint be lodged orally?

A. No. The complaint must be in writing and articulate a prima facie case of discrimination pursuant to recognized theories of discrimination.

Q. When must the complaint be filed?

A. Complaints must be filed within six months after the alleged act of discrimination occurs, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it must be filed within six months of the last act.

Q. If the complaint is filed with KHRC, how does the school find out about the complaint?

A. The commission serves a copy of the complaint on you within seven days.

Q. Can the person also file a complaint with EEOC for the same conduct?

A. It is not necessary. Complaints filed with the KHRC are dually filed with the federal Equal Employment Opportunity Commission unless the complainant requests only to file with KHRC. If the complaint is first filed with KHRC, it is the agency which will initiate the investigation of the complaint.

Responding to the Complaint

Q. We received a letter accompanied by a complaint and a request for information from KHRC. How should we respond?

A. When a copy of the complaint is served on the school district, it is generally accompanied by a letter requesting that certain information be provided to assist in the investigation of the complaint. Although school district personnel may respond to this request, it is recommended any such response be reviewed by your school attorney before it is sent to the KHRC.

Q. The letter asks for the evaluations of several staff members. Can we release this information to KHRC?

A. The Kansas Evaluation of Certificated Personnel Act, K.S.A. 72-9001 et seq., limits the ability of the district to comply with this request. Generally, the complainant will have signed a form authorizing the release of such information to the KHRC, which will allow the district to forward the requested material on the complainant. Without such a release, however, the district should either seek a release from other employees itself or request that the KHRC subpoena the information prior to releasing the information.

Mediation

Q. The letter from KHRC asks if we want to participate in mediation. Should we do this?

A. Probably. You may be able to resolve the issues at this level.

Investigation

Q. What if mediation does not resolve the issues?

A. If the issues are not resolved through mediation, the complaint is assigned to a KHRC field investigator for complete investigation.

Q. What does the investigation involve?

A. The investigation may include a review of written documents, telephone interviews or on-site interviews of witnesses or documents.

Probable Cause and Conciliation

Q. What happens after the investigation?

A. The commissioner assigned to the case must make a determination of whether there is probable cause to believe discrimination has or is occurring. If the commissioner determines that there is no probable cause, written notice of this finding is served on the complainant and the school district within 10 business days after the determination is made. If the commissioner finds there is probable cause, KHRC attempts to get the parties to agree to settle the matter through conciliation within 45 days after the probable cause determination is made. The parties may agree to extend the time period.

KHRC Hearing

Q. What if conciliation efforts are unsuccessful?

A. If conciliation fails, the commission may commence a hearing in the matter. The hearing procedure is governed by provisions of the Kansas Administrative Procedure Act.

Q. Who hears the matter?

A. At least four commissioners and a presiding officer.

Q. Who is the presiding officer?

A. Either a staff hearing examiner or a contract hearing examiner.

Q. Where is the hearing held?

A. In the county where the school is located and the acts complained of occurred.

Q. Can information and witnesses be subpoenaed?

A. Yes. The presiding officer has authority to issue subpoenas for witnesses or documents and is required to do so at the request of either party.

Q. Can conversations which occurred during conciliation be introduced into evidence at the hearing?

A. No. Any endeavors at conciliation cannot be used as evidence at the hearing.

Dismissal of a Complaint

Q. When are complaints dismissed?

A. Complaints may be dismissed by the Commission on its own initiative. Complaints must be dismissed upon the written request of the complainant, or if the commission has not issued a finding of probable cause or no probable cause or taken other administrative action dismissing the complaint within 300 days of the filing of the complaint. The complaint must be dismissed if the hearing results in a no probable cause finding.

Q. Are we notified if the complaint is dismissed?

A. Yes. The commission must mail written notice to all parties of the dismissal of a complaint within five days of dismissal.

Q. Is a dismissal order subject to review?

A. Dismissal of a complaint in this manner constitutes final action by the commission and is deemed to exhaust all administrative remedies under the Act for the purpose of allowing subsequent filing of the matter in court by the complainant, without the requirement of filing a petition for reconsideration pursuant to K.S.A. 44-1010.

Remedies

Q. What are the remedies if the hearing panel concludes discrimination has occurred?

A. If the presiding officer finds the school has engaged in or is engaging in any discriminatory practice, the presiding officer must render an order requiring the school to cease and desist from the practice and to take such affirmative action, including the hiring, reinstatement, or upgrading of employees, with or without back pay, as, in the judgment of the presiding officer, will effectuate the purposes of the act. The order may also include an award of damages for pain, suffering and humiliation, not to exceed the sum of $2,000, which are incidental to the act of discrimination.

Reconsideration and Judicial Review of the Order

Q. Is the order subject to review?

A. Yes. Either party may petition the commission for reconsideration of the matter in accordance with the provisions of K.S.A. 77-529. Unless the party petitions for reconsideration, no cause of action accrues in any court. Further, a party cannot urge or rely on any ground not set forth in the petition for reconsideration if the matter proceeds to court.

Q. After petitioning for reconsideration, is the order subject to further review?

A. Yes. Any action of the commission under KAAD is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions except:

  • Determinations of no probable cause are specifically exempted;
  • The attorney general or county or district attorney, in addition to those persons specified by K.S.A. 77-611, and amendments thereto, has standing to bring an action for review; and
  • On review, the court must hear the action by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and amendments thereto, and the court, in its discretion, may permit any party or the commission to submit additional evidence on any issue.
Q. What may the court do on review?

A. After hearing, the court may affirm the adjudication, set aside or modify it in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.

Posting Notice of Rights

Q. Do we have to post notice of rights under KAAD?

A. Yes. Notice of rights under the Kansas Act Against Discrimination must be posted in conspicuous places in each school.

Penalties

Q. Are there penalties for violating the KAAD?

A. In some cases. A person who willfully resists, prevents, impedes or interferes with the commission in the performance of their duties under the act or who willfully violates an order of the commission is guilty of a misdemeanor and upon conviction may be punished by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

Age Discrimination

Q. Why isn’t age included in the KAAD?

A. Age discrimination claims in Kansas are controlled by the Kansas Age Discrimination in Employment Act, K.S.A. 44-1111 et seq. Complaints under the KADEA are handled by the KHRC in the same manner as complaints under the KAAD.

Section 504 of the Rehabilitation Act of 1973

What’s Prohibited?

Q. What does Section 504 prohibit?

A. Discrimination against an otherwise qualified individual with a disability, solely on the basis of disability, by any program or activity receiving federal financial assistance.

Individual with a Disability

Q. For purposes of Section 504, who is an individual with a disability?

A. The definition of a disability adopted for the Americans with Disabilities Act by the ADA Amendments Act of 2008 applies to Section 504. An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, has a record of having such an impairment or is regarded as having such an impairment.

Major Life Activity

Q. What is a major life activity?

A. Major life activities include seeing, hearing, walking, caring for oneself, learning, breathing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Qualified Individual with a Disability

Q. Are all individuals with disabilities entitled to protection under Section 504?

A. No. In order to be protected by Section 504 an individual must be “qualified” for the employment position, program or service offered by the school.

Q. Who is “qualified” for employment purposes?

A. For employment purposes, a qualified individual with a disability is one who meets the qualification standards for the job and is able to perform the essential functions of the job, with or without reasonable accommodation. The Supreme Court has interpreted Section 504 to mean that an otherwise qualified person is one who is able to perform the duties and responsibilities of the position in question, in spite of his disability. Southeastern Community College v. Davis, 442 U.S. 397, 407 (1979).

Q. Are any persons deemed “unqualified” because of the nature of the handicap?

A. Occasionally. Individuals who have a currently contagious disease or infection which would constitute a direct threat to the health or safety of others or who are unable to perform the essential functions of the job are generally deemed unqualified, thus not entitled to protection.

Q. What is “undue hardship?”

A. Under Section 504, “undue hardship” means undue financial or administrative burdens or a fundamental alteration in the nature of the program. Factors to consider in determining undue hardship include the overall size of the school, taking into account the number of employees, the number and type of facilities, and the size of the budget. Additionally, the nature and cost of the accommodation are factors to consider.

Q. What about drug users or alcoholics?

A. Drug addiction and alcoholism are both conditions which may result in a finding the drug user or alcoholic are handicapped individuals under Section 504. However, both the ADA and Section 504 exclude an individual who is currently engaging in the illegal use of drugs from protection. An individual who is not currently engaging in the illegal use is protected if he or she has successfully completed or is participating in a supervised rehabilitation program.

Section 504 also excludes from protection an individual who is an alcoholic whose current use of alcohol prevents the individual from performing the duties of the job or whose employment, by reason of the alcohol abuse, would constitute a direct threat to the property or safety of others. The ADA does not exclude alcoholics from the definition of an individual with a disability, but does provide that an employer may hold an alcoholic or illegal drug user to the same qualification or job performance standards as other employees.

Reasonable Accommodation

Q. Are we required to provide accommodations for employees or others under Section 504?

A. Yes. For more information on reasonable accommodation see the ADA section of this chapter. As with the ADA, the courts interpreting Section 504 have required reasonable accommodation of known disabilities unless the employee would remain unable to perform the essential functions of the job or providing the accommodation would result in undue hardship.

Protections for Students and Patrons

Q. Are students covered by Section 504?

A. Yes. Elementary, secondary, postsecondary and adult education students are covered by Section 504. At the postsecondary level, colleges and universities must provide students with reasonable accommodations if students are qualified for the program and accommodation would not fundamentally alter the nature of the program. At the elementary and secondary level, students must be evaluated and provided with a free appropriate public education. For students identified under IDEA, IDEA procedures suffice to meet Section 504 standards. For those not eligible under IDEA, most districts use Section 504 accommodation. For comprehensive information on Students and Section 504, see the KASB Section 504 Handbook. Also see the section on Discrimination in the Student section of this Handbook which can be accessed at this link: Discrimination: Based on Disability

Q. Are parents and patrons of the district protected by Section 504?

A. Yes. If you offer programs or services for parents and patrons (e.g., school plays, athletic events, parent-teacher conferences, ceremonies and banquets, etc.) you cannot discriminate against an individual because of their handicap.

Enforcement

Q. Who enforces Section 504?

A. For educational institutions, Section 504 is enforced by the Office for Civil Rights of the Department of Education.

Remedies

Q. What are the remedies under Section 504?

A. Remedies under Section 504 mirror those available under Title VI. Aggrieved individuals may file complaints with OCR. A violation of Section 504 can result in action by the Department of Education to terminate federal funding for the violating school or college. Additionally, aggrieved individuals may bring action in court against the educational institution. Generally, an aggrieved individual need not exhaust administrative remedies prior to filing private lawsuits. Greater Los Angeles Council on Deafness, Inc. v. Community Television of Southern California, 719 F.2d 1017 (1983), cert. denied, 467 U.S. 1252, rehearing denied, 468 U.S. 1224 (1984). A prevailing party in an action brought under Section 504 may be awarded attorney’s fees pursuant to the provisions of 42 U.S.C. § 1988.

Steps to Ensure Compliance

Q. What steps should school districts take to ensure compliance with Section 504?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of disability or handicap;
  • Designate a school employee responsible for coordinating the school’s efforts under Section 504;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Adopt due process procedures for hearings involving students;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of disability;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training to staff and students on the elements of the policy and enforcement of the policy.

Title VI of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VI prohibit?

A. Title VI prohibits exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on the basis of race, color, or national origin. The law prohibits intentional practices as well as those with a discriminatory effect. Guardians Association v. Civil Service Commission of New York, 463 U.S. 582 (1983). Title VI contains an express limitation on its applicability to employment related actions. Relief for employment discrimination is available only “where a primary objective of the federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3; Reynolds v. School District No. 1, 69 F.3d 1523 (10th Cir. 1995).

Q. Does Title VI apply to students?

A. Yes. For additional information about this subject, see the “Discrimination: Based on Race, Color and National Origin” section in the Students chapter of this Handbook which can be accessed at this link: Discrimination: Based on Race, Color or National Origin

Q. Does Title VI cover racial harassment?

A. Yes. OCR has issued guidance on the investigation of allegations of racial harassment under Title VI. Schools should have policies which prohibit such harassment.

Enforcement

Q. Who enforces Title VI?

A. In the case of educational institutions, the Office for Civil Rights of the Department of Education. The Department may initiate investigations based on a complaint that indicates noncompliance with the Act, an annual report, or a periodic compliance review. Incidents of noncompliance may be referred to the Department of Justice for proceedings under any applicable federal, state, or local law. A private right of action exists. Cannon v. University of Chicago, 441 U.S. 677 (1979). An aggrieved individual may file a lawsuit without first exhausting available administrative remedies. Chowdhury v. Reading Hospital Medical Center, 677 F.2d 317 (3rd Cir. 1982).

Remedies

Q. What are the remedies under Title VI?

A. Loss of federal funding. An individual may obtain only injunctive, declarative, or prospective relief. Money damages may also be available. Attorney fees are available under 42 U.S.C. § 1988.

Q. Can federal funding be terminated without any formal proceedings?

A. No. Prior to instituting enforcement proceedings, the law requires the Department of Education to advise the school of the noncompliance and attempt to secure voluntary compliance. Enforcement proceedings cannot begin until the Department determines that voluntary compliance cannot be obtained. Further, there must be an express finding of noncompliance on the record, after an opportunity for a hearing, before funding may be refused or revoked. Further, the department is required to file a written report outlining the grounds for termination or refusal to fund with Congress.

Steps to Comply with Title VI

Q. What steps should the school take to comply with Title VI?

A. The Title VI regulations, like the Title IX and Section 504 regulations, suggest you should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of race, color or national origin;
  • Designate a school employee responsible for coordinating the school’s efforts under Title VI;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements of the policy and enforcement of the policy.

Title VII of the Civil Rights Act of 1964

What’s Prohibited?

Q. What does Title VII prohibit?

A. Title VII prohibits discrimination in employment with respect to compensation, terms, conditions, or privileges of employment, based on race, color, national origin, religion, or sex by private employers with 15 or more employees, as well as by federal, state and local governments.

Q. What types of discrimination are prohibited?

A. Unlawful discrimination includes overt or “disparate treatment” discrimination, “disparate impact” discrimination, sexual and racial harassment and retaliation. Under § 701(k), added to Title VII by the Pregnancy Discrimination Act of 1980, sex discrimination includes discrimination “on the basis of pregnancy, childbirth or related medical conditions.”

Retaliation

Q. Does Title VII protect individuals from retaliation?

A. Yes. Title VII, like most anti-discrimination laws, makes it unlawful for an employer to take action against an individual because that individual has opposed practices which are in violation of Title VII or has participated in a Title VII proceeding. The protection afforded is not absolute; acts by an employee which are disruptive, insubordinate, or damaging to the employer’s legitimate business interests may fall outside the statutory protection against retaliation. See Jennings v. Tinley Park Community Consol. School Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988).

Q. What must an employee show to succeed on a claim of retaliation?

A. In order to succeed on a claim of retaliation under Title VII, an employee must show:

  • He or she engaged in protected activity;
  • An adverse employment action was taken; and
  • There was a causal connection between the employment action taken and the protected activity.

Disparate Treatment and Disparate Impact

Q. What are “disparate treatment” and “disparate impact”?

A. Title VII case law has developed two frameworks for analyzing discrimination claims: one for cases which involve intentionally discriminatory treatment, commonly referred to as disparate treatment, and one for disparate impact cases which involve facially neutral policies or practices which have a discriminatory impact. Proof of discriminatory motive is critical in disparate treatment cases, but is not required in disparate impact cases. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Discriminatory intent may be inferred, however, from surrounding circumstances. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Q. What must an employee do to establish a disparate treatment claim?

A. In some cases there may be direct evidence of discrimination. In other cases, it must be inferred from the circumstances. In two early Title VII cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court developed the criteria for establishing a case of intentional discrimination in the absence of direct evidence of unlawful motivation. This scheme requires the employee to establish a prima facie case of discrimination. The elements of a prima facie case include:

  • Membership in a class of persons protected by Title VII;
  • Qualification for the position in question;
  • An adverse employment action (failure to hire, failure to promote, termination of employment, etc.); and
  • A continuing need for a person with the plaintiff’s qualifications in the position, or the filling of the position with someone outside of the protected class.

After the employee establishes a prima facie case, the employer must then rebut the presumption of discrimination by producing evidence of nondiscriminatory reasons for the employment action. Once the employer has articulated legitimate, nondiscriminatory reasons for the employment action, the employee must prove that the proffered reasons are mere pretext, and convince the fact-finder that discrimination was a motivating factor for the adverse employment action.

Q. What must an employee do to establish a disparate impact claim?

A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court held that facially neutral practices which operate as “built-in headwinds” for minority groups and are not related to measuring job performance capability violate Title VII regardless of the employer’s lack of discriminatory intent. In these cases, a plaintiff must show, by statistics or otherwise, that the employment practice in question results in a substantially disproportionate underrepresentation of a group of protected persons in order to establish a prima facie disparate impact case.

Once the employee has set forth a prima facie case, the burden shifts to the employer to show it had a business necessity for the challenged practice. The employer must demonstrate that the practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).

Even if the employer demonstrates a business necessity, the employee can still prevail by showing the existence of an alternative practice which the employer refused to adopt, demonstrating that the asserted business necessity defense is mere pretext. Cost and effectiveness of the asserted alternative are factors which the court will consider in determining if the employee has met the rebuttal burden. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Discrimination on the Basis of Sexual Preference or Gender Identity

Q. Does Title VII provide protection on the basis of sexual preference?

A. Until recently, most courts had held Title VII does not provide protection to individuals on the basis of sexual preference such as homosexuality. However, recently some courts have ruled differently. The U.S. Supreme court has not yet addressed the issue. Similarly, courts are splitting on the issue of coverage for transgender individuals.

Discrimination on the Basis of Religion

Q. What protection does Title VII provide for religion or religious beliefs?

A. Title VII prohibits discrimination in employment on the basis of an individual’s religion which is defined to include all aspects of religious observance and practice, as well as belief. Title VII protects an employee’s religious practices and observances whether or not the employee belongs to a particular religious sect, so long as the practices are based upon “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1. If the belief of an individual is sincerely held and a motivating force in the individual’s life, an employer must make reasonable accommodation to the employee’s religion, in the absence of undue hardship on the employer’s business.

Q. What must an employee show to establish a case of religious discrimination?

A. To establish a prima facie case, an employee must show:

  • He or she had a bona fide religious belief;
  • The employer was informed of the religious belief and that it was in conflict with the employee’s responsibilities; and
  • He or she was threatened with or subjected to discriminatory treatment for the inability to perform the disputed job duty.

The question then becomes whether the employer is required to provide a reasonable accommodation for the religious belief.

Q. Is requiring employees to take leave without pay for religious observances a reasonable accommodation?

A. Probably. In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Supreme Court considered a challenge to a school district’s practice of requiring that days of religious observance be taken as leave without pay after three days of religious observance leave were exhausted and upheld the practice. The Tenth Circuit Court of Appeals similarly upheld the use of unpaid leave as a reasonable accommodation for a teacher’s religious beliefs in Pinsker v. Joint Dist. No. 28J, 735 F.2d 388 (10th Cir. 1984).

Q. Isn’t having to get a substitute for a teacher’s absences for religious reasons an undue hardship?

A. Most courts say no. Schools have unsuccessfully argued that being required to secure a substitute for a teacher’s absences constitutes an undue hardship in several cases. See Niederhuber v. Camden County Vocational & Technical School Dist., 495 F. Supp. 273 (D.N.J. 1980); Rankins v. Commission on Professional Competence of the Ducor Union School Dist., 593 P.2d 852(Cal. 1979). This has been true even where the district is unable to secure a substitute with proper qualification in the discipline. See Wangsness v. Watertown School Dist., 541 F. Supp. 332 (D.S.D. 1982).

Enforcement

Q. Who enforces Title VII?

A. The EEOC is responsible for enforcing Title VII. This is done through the processing of charges filed by individuals and the filing of lawsuits by the EEOC. The individual may also file his or her own lawsuit at the conclusion of the EEOC's processing of the charge.

Remedies

Q. What are the remedies under Title VII?

A. Until passage of the Civil Rights Act of 1991, a plaintiff under Title VII or the ADA was entitled to traditional equitable remedies, such as reinstatement, backpay, front pay, and injunctive relief. As enacted, Title VII made no mention of legal damages, and except for nominal damages, such damages were generally considered unavailable under these laws. The Civil Rights Act of 1991, however, allows for recovery of compensatory and punitive damages in Title VII or ADA cases which involve acts of intentional discrimination. Such damages are not available in disparate impact cases.

Punitive damages are available against a respondent only if it is shown that the respondent engaged in the discriminatory practice with malice or reckless indifference to the federally protected rights of the victim. Punitive damages cannot be imposed on a government, government agency, or a political subdivision such as a public school district or community college.

Compensatory damages may be awarded to compensate individuals for their actual losses, and can include such things as medical expenses, future pecuniary losses, emotional pain and suffering, mental anguish, loss of enjoyment of life. The total amount of damages which may be awarded in cases is capped by the law. The amount of the cap is predicated on the number of employees employed by the school or college. The caps are as follows: more than 14 but fewer than 101 employees: $50,000; more than 100 but fewer than 201 employees: $100,000; more than 200 but fewer than 501 employees: $200,000; and more than 500 employees: $300,000.

Attorney fees may be awarded to the prevailing party. A jury trial is available under Title VII.

Q. Are punitive damages available?

A. Not against a school district, but they may be available against individual defendants.

Title VII: Sexual Harassment

Definition of Sexual Harassment

Q. What is sexual harassment?

A. The EEOC’s guidelines indicate unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. 29 CFR § 1604.11.

School District Liability for Harassment

By Supervisory Personnel

Q. Is a school district liable for sexual harassment by its supervisory personnel?

A. The types of harassment explained in numbers one and two of the EEOC definition are generally called quid pro quo harassment. There is strict liability for an employer for quid pro quo harassment by a supervisor who has the authority to take action against an employee. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

In Faragher v. City of Boca Raton, 524 U.S. 775(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742(1998), the Supreme Court held an employer is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if the employer has not taken adverse job action against the victim of the harassment, the employer may raise an affirmative defense to liability. The defense has two elements:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
Q. Who qualifies as a supervisor?

A. According to the EEOC Enforcement Guidance, an individual qualifies as an employee’s supervisor if the individual has authority to undertake or recommend tangible employment decisions affecting the employee or has authority to direct the employee’s daily work activities. A person outside the employee’s direct chain of command may also “qualify” as a supervisor if the employee reasonably believes the harasser has broad authority over or could influence employment decisions with regard to the employee.

Q. What is a tangible employment action?

A. It is a significant change in employment status. Examples include hiring, firing, promotion, demotion, failure to promote, undesirable reassignment, a significant change in benefits, compensation decisions and work assignments.

Q. How can we show we exercise reasonable care to prevent and promptly correct harassment?

A. Adopt, publicize and even-handedly enforce a harassment policy and complaint procedures. Provide employees with copies of the policy and complaint procedure, redistribute the policy periodically, and provide employees with training on the policy and procedures.

Q. How can we show an employee acted unreasonably?

A. An employer may be able to show an employee acted unreasonably by showing the employee provided it with no information about the harassment; provided it with untruthful information about the harassment; failed to cooperate in the investigation of the complaint or unreasonably delayed in filing a complaint.

Q. What makes an employee’s refusal to file a complaint reasonable?

A. Generally it will be difficult for an employer to show the employee acted unreasonably if the employee can show she or he had a reasonable fear of retaliation, there were obstacles to filing complaints, or she or he perceived the complaint process to be ineffective.

By Non-Supervisory Co-Workers or Non-Employees

Q. Is the district liable for sexual harassment by non-supervisory co-workers and/or non-employee individuals?

A. Both the courts and the EEOC take the position the employer is liable if it knew or should have known of the conduct and failed to take steps to remedy the situation.

Paramour Preferences

Q. Is there any potential liability for paramour preferences?

A. The courts are split on whether a plaintiff denied promotion, advances, etc., in favor of someone romantically involved with the decision-maker has a valid cause of action. Compare Toscano v. Nimmo, 570 F.Supp. 1197 (D. Del. 1983) and Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986) [violation found] with Miller v. Aluminum Company of America, 679 F.Supp. 495 (W.D.Pa. 1988); aff'd, 856 F.2d 184 (3rd Cir. 1988) and DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987) [no violation].

Sexual Harassment Policy Components

Q. What should a sexual harassment policy contain?

A. At a minimum the policy should include:

  • A clear explanation of prohibited conduct;
  • Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
  • A clearly described complaint process that provides accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Corrective Action

Q. What type of corrective action should we take if harassment occurs in our school?

A. Corrective action should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. Remedial measures need not be those that the employee requests or prefers, as long as they are effective.

Disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

Corrective action should not adversely affect the complainant but should correct the effects of the harassment. It should be designed to put the employee in the position she or he would have been in if the misconduct had not occurred.

No Application to Students

Q. Does Title VII apply to students?

A. No. Not unless they are also employees of the district. However, sexual harassment of students is covered by Title IX. See the discrimination section of the Students chapter of this Handbook for more information on student harassment which can be accessed at this link: Discrimination: Based on Sex: Sexual Harassment

Steps to Comply with Title VII

Q. What steps should school districts take to limit liability for sexual harassment in employment?

A. Schools should take the following steps:

Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;

  • Designate a school employee responsible for coordinating the school’s efforts under Title VII;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify employees that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for staff.
Q. Is having a sexual harassment policy really that important?

A. Yes, the existence of a policy forms the basis for the defense to liability under the most recent Supreme Court cases.

Employee on Student Harassment

Q. Can the district have liability if an employee harasses a student?

A. Yes, but not under Title VII. A student may have a damage remedy under Title IX of the Education Amendments of 1972, but only if a school official who has authority to address the alleged harassment has actual knowledge of the harassment and fails to adequately respond. A school district may also have liability for tort claims under state law.

Title IX of the Education Amendments of 1972

What’s Prohibited?

Q. What does Title IX prohibit?

A. Discrimination on the basis of sex in private or public educational programs receiving federal funds.

Enforcement

Q. Who enforces Title IX?

A. The Office for Civil Rights of the Department of Education enforces the Act. Periodic compliance reviews or a complaint filed by an aggrieved individual may trigger an investigation. As with Title VI and Section 504, complaints of discrimination under Title IX can be filed with OCR.

Application

To Employees

Q. Does Title IX cover employment discrimination?

A. Unlike Title VI, after which Title IX was patterned, none of the statutory exemptions under Title IX apply to employment. However, until the Supreme Court decision in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), most courts limited Title IX’s protections to direct beneficiaries of the federal financial assistance and did not extend those protections to victims of employment discrimination. In North Haven, however, the Supreme Court upheld regulations issued by the Department of Health, Education and Welfare which prohibited discrimination on the basis of sex in employment under Title IX.

Q. What standards do courts apply to claims of sexual harassment in employment under Title IX?

A. Courts have generally concluded that developing separate standards for sex discrimination under Title IX and Title VII would serve no purpose, and have applied Title VII analysis to Title IX claims involving employment discrimination. See Mabry v. State Bd. of Community Colleges Occupational Educ., 813 F.2d 311 (10th Cir.), cert. denied, 484 U.S. 849 (1987); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

To Students

Q. Does Title IX protect to students?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Athletic Programs; Discrimination: Based on Sex: Pregnant or Married Students

Q. Do courts apply different standards to claims of sexual harassment by students under Title IX?

A. Yes. See the discrimination section of the chapter on “Students” in this Handbook for more information on this topic. Discrimination: Based on Sex: Sexual Harassment

Remedies

Q. What remedies are available?

A. Federal funding may be terminated. An aggrieved individual may file a private right of action. Cannon v. Univ. of Chicago, 441 U.S. 677, 706-708 (1979). An aggrieved individual may obtain injunctive relief, e.g., an order that the individual be hired, as well as attorney fees. Money damages are available. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60(1992).

Steps to Comply with Title IX

Q. What steps should school districts take to ensure compliance with Title IX?

A. Schools should take the following steps:

  • Adopt a policy which prohibits discrimination, including harassment, on the basis of sex;
  • Designate a school employee responsible for coordinating the school’s efforts under Title IX;
  • Adopt a complaint or grievance procedure that provides for the prompt and equitable resolution of complaints;
  • Take appropriate and continuing steps to notify students, employees and patrons of the school that the school does not discriminate on the basis of sex;
  • Ensure complaints of discrimination are investigated and resolved promptly and equitably; and
  • Provide training on the elements and enforcement of the policy for students and staff.