1. Legal Update 2015 Presented by Lusk & Albertson
L’Anse Creuse Public Schools
Administrator In-Service
Tuesday, August 18th

2. Distribution of Topics
Social Media Searching Student Devices Guns in Schools
Evaluation Layoff & Recall Teacher Placement
Kevin T. Sutton
Robert T. Schindler

4. Recent Developments House Bill 4791 What?
Requires all public school districts to have social media policy
“Shall adopt and implement a policy regulating social media interaction between pupils and school personnel”
Must be posted to District web site
Board “shall consult” with school personnel in developing
Notify school personnel once adopted
When?
Introduced July 15, 2015
Hoped to be effective SY; not likely
How?
Districts will have to develop own policies that address conduct
How restrictive will policies be?
Fundamental challenges

5. Why is this Needed? Prevalence of digital communications
Proliferation of student-staff issues
Absence of firm guidance for educators
Misunderstanding regarding limitations on free speech
HEADLINES …
Dabo Swinney Bans Clemson Players From Using Social Media
Minnesota AD Resigns For Sexually Harassing Colleagues Via Text Message
Disney confirms selfie stick ban at theme parks

6. Dealing with Online Speech
It’s going to happen, how do we deal with it?
District Policy
Student Code of Conduct
Digital Communications Policy, if applicable
Beyond School Rules
First Amendment implications/analysis

7. This is Speech After All … Right?!?
Tinker v. Des Moines Ind. Sch. Dist. (1969)
USSC recognizes students’ right to free speech on and off campus
Students have right to free speech unless it “materially disrupts class work or involves a substantial disorder or invasion of the rights of others”
Hazelwood Sch. Dist. v. Kuhlmeir (1980)
First Amendment protections did not compel a public school to affirmatively sponsor speech that conflicts with its “legitimate pedagogical goals” even though same speech could not be regulated outside of school

8. Analysis of Speech
Key Question:
Does the speech from outside school walls cause a substantial disruption in school?
If YES, discipline may be appropriate
If NO, discipline not likely appropriate

9. Basic Principles Extracted
Assessing a “Substantial Disruption”
Use Caution
Be Realistic
Inconvenience Not Enough
Embarrassment Not Enough
A “Buzz” Not Enough
Adults Need Thicker Skin
Key Elements
Violence
Threats
Safety
Criminal Activity
Courts Don’t Always Cooperate

10. The Case?
Taylor Bell aka
T-Bizzle

11. Bell v. Itawamba School District
Facts
5th Circuit Court of Appeals
2-1 Decision … in favor of “T-Bizzle”
[W]e decide only that … Tinker … would not afford the School Board a defense for its violation of Bell’s First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell’s song either substantially disrupted the school’s work or discipline or that the school officials reasonably could have forecasted such a disruption.
For these reasons, … judgment is RENDERED in favor of Taylor Bell against the School Board on his First Amendment claim. The case is REMANDED, and the district court is DIRECTED to award Bell nominal damages, court costs, appropriate attorneys’ fees, and an injunction ordering the School Board to expunge all references to the incident at issue from Bell’s school records.
Entire 5th Circuit to rehear case  The panel said the Supreme Court "has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here."

12. Searching Accounts/Devices
Internet Privacy Protection Act (“IPPA”)
Passed in 2012
Sec. 4. An educational institution shall not do any of the following:
(a) Request a student or prospective student to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.
(b) Expel, discipline, fail to admit, or otherwise penalize a student or prospective student for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.
NOTE: Sec. 3 provides similar restrictions for employers

13. Search & Seizure Standard for Police
Warrant for search
Standard for School Administrators
Two-Step Inquiry [TLO v. New Jersey]
Reason to suspect student violated SCC?
Reason to suspect evidence of violation of SCC exists in the area you want to investigate/look?
Confirmed by GC v. Owensboro Public Schools (March 2013)
Things v. Information
Things
Search for Stolen iPad / Weapon / Drugs
Information
Search for Texts / Photos
Consent Issues
Can be addressed via policy
Reasonable expectation of privacy?
Use what you have at your disposal!

15. Recent Developments Current state of Michigan law Legal challenges
Recent decisions
A solution on the horizon?

16. Updates on important labor law issues
Teacher Placement, Evaluation, and Layoff and Recall

17. Teacher Placement
Can we really put them wherever we want???

18. Teacher Placement
2011 Public Act 103 added “teacher placement” to the list of “prohibited subjects of bargaining”
A “prohibited subject of bargaining” is described by the statute (MCL ) as follows:
(3) Collective bargaining between a public school employer and a bargaining representative of its employees shall not include any of the following subjects:
(4) the matters described in subsection (3) are prohibited subjects of bargaining and, for the purposes of this act, are within the sole authority of the public school employer to decide.

19. Teacher Placement Significance of Prohibited Subjects:
Either party to negotiations may refuse to discuss a prohibited subject (although may voluntarily do so)
Public employer may act unilaterally with respect to any prohibited subject without bargaining to agreement or impasse
Neither party may maintain to impasse a proposal pertaining to a prohibited subject
Any provision in a collective bargaining agreement covering a prohibited subject is not enforceable
Either party may refuse to continue or carry over within a new contract any existing provision pertaining to a prohibited subject
A party may not insist on the inclusion of a prohibited subject in bargaining once the other side has notified it will not bargain over it

20. Teacher Placement Specifically, the prohibited subject relates to:
Any decision made by the public school employer regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit
The Michigan Court of Appeals has recently interpreted this language very broadly in Ionia Public Schools v Ionia Education Ass’n, COA Case No (July 28, 2015).

21. Teacher Placement
The Ionia Court held that the broad language used demonstrates as follows:
the Legislature intended to remove from the ambit of bargaining any decision concerning the assignment or placement of teachers, and that any decision-making about teacher placement or assignments is to be within the sole discretion of the employer. The broad language used in the statute necessarily includes any decision-making process as well; consequently, policies and procedures used to make teacher placement decisions such as those at issue in the instant case undoubtedly fall within the broad reach of "any decision" regarding teacher placement. Therefore, the plain language of § 15(3)(j) precludes bargaining over the bid-bump procedure, or any other procedure utilized in teacher placement.

22. Teacher Placement So what does this mean?
School District has the sole and exclusive authority to make placement decisions
This relates to initial placement, voluntary or involuntary transfers, or even hiring or promotion type decisions
Any language currently contained in the CBA would be unenforceable by the union
Notice?

23. Teacher and Administrator Evaluation
What applies for ?

24. Evaluation What do we already know? Evaluations system must:
Be rigorous, fair, and transparent
Must be developed with input from teachers and administrators
Evaluate student growth using effective measures
Student growth data must be a significant factor in evaluations
Must be rated using four categories: highly effective, effective, minimally effective, and ineffective

25. Evaluation What’s new for 2015-16?
50% of an evaluation must be based on student growth data
Must use at least 3 years of data if available
Year end evaluation must include goals for the next year
First year probationer or teacher that received minimally effective or ineffective must receive an individualized development plan

26. Evaluation What’s new for 2015-16 (cont.)?
First year probationer or teacher that received minimally effective or ineffective must receive a mid-year progress report the following year
Evaluations must be based on multiple observations
A teacher rated ineffective 3 consecutive years must be discharged
A teacher rated highly effective 3 consecutive years may be evaluated biennially

27. Evaluation Importance of following the law:
Garden City EA v Garden City PS (2013)
No cause of action under section 1249
Summer v Southfield Public Schools (2015)
Agree no cause of action, but if 1249 evaluation is used to make a determination for a 1248 personnel decision, then whether was followed is pertinent to a cause of action under section 1248.

28. Layoff and Recall
Making decisions on who stays and who goes

29. Personnel Decisions
“Personnel Decisions” for “teachers” dictated by section 1248
Under 1248:
“personnel decision” includes layoff or recall or hiring after a staff or program reduction
The goal of personnel decisions is to “retain effective teachers”
No teacher receiving an ineffective evaluation shall be given “any preference that would result in them being retained over a teacher” given any other evaluation

30. Personnel Decisions Under 1248 (cont.):
Effectiveness shall be measured by 1249 evaluation system;
Personnel decisions shall be based on:
1) Individual performance
2) Significant, relevant accomplishments and contributions
3) Relevant special training
Seniority or tenure cannot be a primary or determining factor, but may be used if the 3 items above are all equal

31. Personnel Decisions
What recourse is there for a teacher subject to layoff or not recalled?
May not file a grievance/arbitration – prohibited subject of bargaining
May not seek review by the State Tenure Commission – Baumgartner v Perry Public Schools (2015)
May seek review by state circuit court – MCL (3) and Summer v Southfield PS (2015)

33. Additional Questions? Kevin T. Sutton Robert T. Schindler
Direct: (248)
Cell: (734)
Robert T. Schindler
Direct: (248)
Cell: (248)