Today, August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

Additionally, on August 3^rd the Massachusetts Association of School Committees (“MASC”) published a revised version of Policy ACAB to adapt to the new Title IX regulations. After review of the MASC model, however, we believe that several revisions are required. The following are most significant:

• The Policy should apply only to sexual harassment and not to harassment generally;
• The Policy must contain timeframes for stages of the investigation process; and
• The Policy must address Title IX complaints from employees.

We also advise that districts adopt the following components within the policy:

• A “preponderance of the evidence” standard;
• Limit appeals from determinations only to those that are required and that it not choose to allow appeals on other grounds, to avoid further entangling administrators in these procedures;
• Do not grant full, trial-like hearings as permitted by the regulations; and
• In addition to a Title IX Coordinator, the new regulations require a separate “decisionmaker” and a separate “investigator.” The policy ought to define who these people are and that generally the building Principal should be the “decisionmaker” and that the “investigator” should generally be the assistant Principal or other appropriate administrator.

School Committees will need to update their policies to conform to the new law which goes into effect on August 14^th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding this update, the new Title IX regulations, or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

The Massachusetts Department of Elementary and Secondary Education (“DESE”) is permitting school districts to delay the start of the 2020-2021 school year by 10 days but not later than September 16, 2020, reducing the student school days to 170 days from the current 180 day requirement for the 2020-2021 school year.  Waivers may be available for school districts that are unable to meet the September 16^th start date.

School Committees are not required to reduce the number of student days in the 2020-2021 school year nor are they required to wait to begin classes until September 16^th.  School Committees should  consult their superintendents and leadership teams to assess the needs of educators for additional training to be able to effectively and fully implement the remote and hybrid plans being designed and be prepared to engage with their unions over the number of student days for the upcoming school year.

If you have questions regarding this update, bargaining obligations associated with the reopening of schools for the 2020-2021 school year,  or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On June 25, 2020, the Commissioner of the Department of Elementary and Secondary Education released Initial Fall School Reopening Guidance. Please find the guidance here. If you have any questions, please contact us.

Earlier this week, the U.S. Department of Education (“DOE”) issued new guidance regarding the provision of services to English language learners during remote learning. The comprehensive guidance provides, in part, that while districts are operating via remote or distance learning:

• Districts continue to screen new students to determine their English language status. Students must be screened within thirty (30) days of enrollment and may be done remotely.
• Districts continue to provide language instruction services to English learners, although the DOE notes that “…schools may not be able to provide all services in the same manner they are typically provided.”
• Districts ensure a “continuity in providing services to English learners to the greatest extent possible under current circumstances.” Specifically, the DOE recommends that ELL teachers continue to provide instruction to students who were in self-contained English language programs or receiving pull-out services. In situations where an English language student participated in mainstream classrooms, ELL teachers will continue to collaborate with content-area teachers and provide support and accommodations to English learners.
• Districts provide language accommodations for English learners in content classes that are being held remotely.
• Districts may use Title III funds for teacher training if “specific to” the needs of English learners.
• Districts may not exit an English learner from “English learner” status until the student “has demonstrated proficiency on a valid and reliable assessment that includes the four domains of listening, speaking, reading and writing.” If a district is not able to complete assessments for the 2019-2020 school year due to the COVID-19 pandemic, districts may complete the assessments in the fall of 2020.
• Districts should closely monitor English learners to determine if their proficiency has decreased due to limited instruction during the COVID-19 pandemic. If this is the case, English learners may require additional supports.

The DOE guidance in its entirety can be found at: https://www2.ed.gov/documents/coronavirus/covid-19-el-factsheet.pdf.

The Massachusetts Department of Elementary and Secondary Education (“DESE”) has also issued specific guidance on provisional identification of English learners and guidance, including strategies and resources, to help districts meet the needs of their English learners during remote learning.

The DESE guidance can be found at:

http://www.doe.mass.edu/covid19/ele/.

If you have questions or concerns regarding the content of this update, or any other questions regarding school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Last week, the Appeals Court issued a decision, State Police Association of Massachusetts v. Alben (19-P-210), regarding whether police officers were entitled to overtime pay for detail work contrary to the applicable collective bargaining agreement.

As noted in the decision, the Massachusetts Port Authority (MassPort) contracted with the Massachusetts State Police for police service at the airport. The State Police collective bargaining agreement included a provision regarding detail work and overtime work. The officers were paid directly by MassPort for overtime work (this has since changed) and were compensated the contractual detail rate for overtime worked at the airport, not the statutory overtime rate.

After receiving a letter from the Attorney General’s Fair Labor Division which authorized the plaintiffs to “pursue this matter through the civil lawsuit immediately”, plaintiffs filed the complaint. Plaintiffs argued that the State Police and MassPort violated M.G.L. c. 149 § 30C “by failing to pay State troopers time and one-half their normal hourly rate for ‘overtime detail work.’” The Superior Court dismissed the claims without prejudice, holding that the parties should submit the claims as grievance to arbitration.

Plaintiffs then filed for arbitration pursuant to the parties’ collective bargaining agreement. The arbitrator ruled that the grievance was not substantively arbitrable and stated that the State Police Colonel had the “nondelegable authority to assign State troopers to detail work as opposed to overtime work.” The arbitrator also decided that he did not have the authority to change the detail rate, as that was a binding decision made by the parties.

Then, plaintiffs moved to reinstate the claim. The Superior Court permitted the motion and granted the State Police’s motion to dismiss and MassPort’s motion for summary judgment. The Superior Court held that the parties’ collective bargaining agreement took precedent over contrary provisions of M.G.L. c. 149 § 30C.

The plaintiffs appealed the case to the Massachusetts Appeals Court. The Appeals Court affirmed the judgment of the Superior Court. First, the Appeals Court found that plaintiffs did not have standing because M.G.L. c. 149 § 30C does not provide a right of private action. Second, the Appeals Court held that even if plaintiffs had standing, their claims would not succeed. Plaintiffs claimed that M.G.L. c. 149 § 30C requires the overtime rate of one and one-half time. The court found that because M.G.L. c. 150E provides that “‘the terms of a collective bargaining agreement prevail over contrary terms in certain enumerated statutes…’” and M.G.L. c. 149 § 30C is one of the enumerated statutes, that the plaintiffs were entitled to the rate pursuant to the parties’ collective bargaining agreement. Therefore, the Appeals Court found the statutory language of M.G.L. 150E to be clear and unambiguous, holding that the parties’ collective bargaining agreement supersedes M.G.L. c. 149 § 30C. The Appeals Court deferred to the arbitrator’s conclusion that the detail rate of pay applies, not the statutory overtime rate.

If you have questions or concerns regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.