Are You Ready for It? Employee Speech During Election Season

Fall has finally arrived.  That means you can pull your flannels from the back of the closet, and it means Taylor Swift's “Encore” to The Life of a Showgirl now fills the airwaves.  (Editor’s note: or not.  Have you actually listened to this clunker?)  Unfortunately, we all know what else fills the airwaves this time of year: election ads.  As those ads rain down across the state, they tend to spark the same evergreen questions at the local district level about what employees can and can’t do during election season.

Those questions start with the First Amendment, and the cases we yap about during in-services, Pickering v. Board of Education and Garcetti v. Ceballos, carry extra weight this time of year.  The First Amendment generally protects employees who speak as private citizens on matters of public concern, like senate candidates or ballot questions, on their own time and away from their job duties.  When employees speak as part of their official duties or use district time or resources, the district can direct or restrict that speech.  Even protected speech has limits.  When private speech causes issues at school, courts weigh an employee’s interest in speaking against the district's interest in smooth operations.  If the speech seriously damages working relationships or undercuts the employee’s effectiveness, the district's interests can win out, even for off-duty speech.  That balancing test makes this a tricky area (see the recent news of teachers winning cases against their former employers after posting about Charlie Kirk), so resist the urge to react quickly and be sure to loop in legal counsel before taking any action.

The Nebraska Political Accountability and Disclosure Act (“PADA”) also plays a major role this time of year.  Under PADA, employees can’t use public resources like district email, computers, phones, vehicles, paper, or staff time to campaign for or against a candidate or ballot question, and they can’t campaign on work time.  That includes posting from a school-affiliated social media account or using a district device to share political content.  On their own time and dime, though, employees can share how they plan to vote, urge others to do the same, or speak to a local civic group.  In short, PADA doesn’t silence anyone.  It just keeps campaigning off the district’s clock and out of the district's supply closet.

To help your district gear up for the season, KSB policy subscribers can log on to the portal and download a one-page guide that outlines the do’s and don’ts for employees during election season, covering the First Amendment, PADA, Rule 27, and policy considerations.  The one-page guide will be located under Policy Updates.  If you don’t subscribe to our policy service and want to purchase the guide, reach out to us at ksb@ksbschoollaw.com.

Like any good Taylor Swift era, election season eventually ends.  The flannels will stay in rotation, the “Encore” will stay on repeat, and the campaign ads will finally fade from the airwaves.  In the meantime, we’re here to help your district navigate the questions that come up.  Shoot us an email at ksb@ksbschoollaw.com with any questions. 

Are You Ready for It? Employee Speech During Election Season

Fall has finally arrived.  That means you can pull your flannels from the back of the closet, and it means Taylor Swift's "Encore" to The Life of a Showgirl now fills the airwaves.  (Editor’s note: or not.  Have you actually listened to this clunker?)  Unfortunately, we all know what else fills the airwaves this time of year: election ads.  As those ads rain down from Sioux Falls to Rapid City, they tend to spark the same evergreen questions at the local district level about what employees can and can't do during election season.

Those questions start with the First Amendment, and the cases we yap about during in-services, Pickering v. Board of Education and Garcetti v. Ceballos, carry extra weight this time of year.  The First Amendment generally protects employees who speak as private citizens on matters of public concern, like senate or house candidates or ballot questions, on their own time and away from their job duties.  When employees speak as part of their official duties or use district time or resources, the district can direct or restrict that speech.  Even protected speech has limits.  When private speech causes issues at school, courts weigh an employee's interest in speaking against the district's interest in smooth operations, and if the speech seriously damages working relationships or undercuts the employee's effectiveness, the district's interests can win out, even for off-duty speech.  That balancing test makes this a tricky area (see the recent news of teachers winning cases against their former employers after posting about Charlie Kirk), so resist the urge to react quickly and be sure to loop in legal counsel before taking any action.

South Dakota law also plays a major role this time of year.  SDCL 12-27-20 prohibits school districts and other political subdivisions from spending, or allowing the spending of, public funds to influence the nomination or election of a candidate, the petitioning of a question onto the ballot, or the passage or defeat of a ballot question.  In practice, that means district email, computers, phones, vehicles, paper, school-affiliated social media accounts, and paid staff time can't be used to campaign for or against a candidate or ballot question.  The stakes are real: spending $1,000 or more in violation of the statute is a Class 1 misdemeanor, and spending $10,000 or more is a Class 6 felony.

The statute also contains two important safeguards.  First, it expressly states that it doesn't limit the free speech of employees speaking in their personal capacity.  Second, it allows districts to present factual information solely to educate voters on a ballot question.  That exception matters when your district has an opt-out or bond election on the ballot, but the line between informing and advocating can be thin.  A fact sheet on what a bond would fund is one thing; a flyer urging patrons to "Vote Yes for Our Kids" is another.  

South Dakota's Code of Professional Ethics adds another layer for certified staff.  Under ARSD 24:08:03:02, educators must take care to separate their personal views from those of the district.  That means a teacher's yard sign is their own business, but a campaign pitch during class or a candidate flyer run off on the school copier could land them in front of the Professional Teachers Practices and Standards Commission.  The code also cuts the other way: educators cannot interfere with a colleague's exercise of political and citizenship rights.

To help your district gear up for the season, KSB policy subscribers can log on to the portal and download a one-page guide that outlines the dos and don'ts for employees during election season, covering the First Amendment, SDCL 12-27-20, the South Dakota Code of Professional Ethics for educators, and policy considerations.  If you don't subscribe to our policy service and want to purchase the guide, reach out to us at ksb@ksbschoollaw.com.

Like any good Taylor Swift era, election season eventually ends.  The flannels will stay in rotation, the "Encore" will stay on repeat, and the campaign ads will finally fade from the airwaves.  In the meantime, we're here to help your district navigate the questions that come up.  Shoot us an email at ksb@ksbschoollaw.com with any questions. 

Are You Ready for It? Employee Speech During Election Season

Fall has finally arrived.  That means you can pull your flannels from the back of the closet, and it means Taylor Swift’s “Encore” to The Life of a Showgirl now fills the airwaves. (Editor’s note: or not.  Have you actually listened to this clunker?)  Unfortunately, we all know what else fills the airwaves this time of year: election ads.  As those ads rain down from Cheyenne to Cody, they tend to spark the same evergreen questions at the local district level about what employees can and can’t do during election season.

Those questions start with the First Amendment, and the cases we yap about during in-services, Pickering v. Board of Education and Garcetti v. Ceballos, carry extra weight this time of year.  The First Amendment generally protects employees who speak as private citizens on matters of public concern, like senate candidates or ballot questions, on their own time and away from their job duties.  When employees speak as part of their official duties or use district time or resources, the district can direct or restrict that speech.  Even protected speech has limits.  When private speech causes issues at school, courts weigh an employee’s interest in speaking against the district’s interest in smooth operations, and if the speech seriously damages working relationships or undercuts the employee’s effectiveness, the district’s interests can win out, even for off-duty speech.  That balancing test makes this a tricky area (see the recent news of teachers winning cases against their former employers after posting about Charlie Kirk), so resist the urge to react quickly and loop in legal counsel before taking any action.

Wyoming law also plays a role this time of year, though not always the one people expect.  Under Wyo. Stat. Ann. § 9-13-105(b), part of the Wyoming Ethics and Disclosure Act, public officials cannot use public funds, time, personnel, facilities, or equipment for political or campaign activity unless the law authorizes the use, or the use is properly incidental to an authorized activity and the official reimburses any added cost.  The Act defines “public official” to include anyone elected to local office, which covers school board trustees.  With trustee seats on the November ballot, a trustee seeking reelection cannot campaign through district email, the district website, or staff time.  The stakes are real; a violation is a misdemeanor carrying a fine of up to $1,000 and gives cause for removal from office.

Interestingly, the Act’s definition of “public employee” reaches only a short list of senior state employees, like department directors.  It does not reach teachers, administrators, or other district staff.  That doesn’t open the district’s supply closet to campaigners.  Wyo. Stat. Ann. § 22-25-115 bars written campaign advertising on any real or personal property of a political subdivision, though a school board may permit it through time, place, and manner rules that give opposing views equal access.  Unless your board adopts such rules, candidate flyers stay off the staff lounge bulletin board and bumper stickers stay off the activity bus.  Beyond that, board policy does the heavy lifting.  Make sure your policies bar campaigning on work time and with district email, computers, phones, vehicles, paper, and school-affiliated social media accounts.

The same caution applies when your district has a bond election on the ballot.  Keep district communications factual, because the line between informing and advocating can be thin.  A fact sheet on what a bond would fund is one thing; a flyer urging patrons to “Vote Yes for Our Kids” is another.

Certified staff face one more layer.  The Wyoming Professional Teaching Standards Board (“PTSB”) may revoke or suspend certification for incompetency, immorality and other reprehensible conduct, or gross neglect of duty.  Wyo. Stat. Ann. § 21-2-802(c).  The PTSB’s Code of Conduct, while not an independent basis for discipline, directs educators to use school computers only for school purposes and to keep their personal and professional online lives separate.  That means a teacher’s yard sign is their own business, but a campaign pitch during class or a candidate flyer run off on the school copier could draw scrutiny from both the district and the PTSB.

To help your district gear up for the season, KSB has created a one-page guide that outlines the dos and don’ts for employees during election season, covering the First Amendment, the Wyoming Ethics and Disclosure Act, Wyo. Stat. Ann. § 22-25-115, the PTSB Code of Conduct, and policy considerations.  If you want to purchase the guide, reach out to us at ksb@ksbschoollaw.com.

2026-2027 QUARTERLY WEBINAR SERIES

Play Like a Pro (And Keep Your District Out of the Penalty Box)

It's game day and an option enrollment for a special education student just landed in your inbox. A student hasn't been to class in three weeks, and you are not sure whether this is a child find issue or what legal obligations should be considered. A student's TikTok mocking her English teacher just went viral, and you need to know exactly where you stand. A parent owns two houses and swears their kid lives at the one in your district, but everyone in town knows different.

Nebraska school leaders face the same high-pressure decisions every school year. KSB School Law is offering an in-depth series specifically designed for Nebraska school administrators. This year's series follows a student from the front door to the sidelines and back again: how they get in, whether they show up, what rights they carry once they are here, and every other way they might land on your enrollment roster. As always, each three-hour session goes deeper than an hour-long webinar or a 45-minute conference breakout can, and each comes loaded with the forms and checklists you need to put the law into practice.  Click here to register.

Topic:  Welcome to the Never-Ending Transfer Portal: Surviving Option Enrollment

Date:   October 13, 2026

College athletes aren't the only ones changing schools with regularity these days. Every year, Nebraska families use option enrollment to move their kids to the district (or the program) that fits best, and every year, school leaders get tripped up on the same handful of deadlines, capacity decisions, and appeal rights.  Add in a few years of legislative tinkering and some persistent myths about what option enrollment does and doesn't require, and it's easy to see why this topic keeps landing back on the quarterly schedule.  KSB's attorneys will walk through the full option enrollment lifecycle – from setting capacity and posting notice to handling requests, denials, and appeals – with an emphasis on recent changes to the law.

*Participants will receive updated option enrollment forms, including scripts and checklists for central office staff, sample capacity resolutions reflecting common practices so you don’t have to guess about all the blanks to fill in, and sample response letters ready to drop into your own process.

→Ideal for: superintendents, principals, special education directors and central office staff who handle option enrollment applications and appeals.

Topic:  Bueller? Bueller? Getting Serious About Attendance and Truancy

Date:   December 8, 2026

Ferris Bueller made skipping school look effortless. For the students missing class today, the reasons — and the legal consequences for schools that don't respond correctly — are a lot more complicated.  Chronic absenteeism has become one of the defining student issues of the last several years, and schools are under increasing pressure to intervene earlier, document more carefully, and know exactly when a truancy referral is required (and when it isn't). With NDE and state report cards focusing on attendance rates more than ever, this landscape is confusing and frustrating.  This webinar walks through the full attendance continuum: distinguishing excused from unexcused absences, running a legally sound attendance-intervention process, steps required by Nebraska law before notifying the county attorney, coordinating with county attorneys on truancy filings, and avoiding the compliance traps that come with tracking attendance for IEPs, 504 plans, and state reporting.

*Participants will receive information on what to check in your attendance policies, sample intervention plan templates for common scenarios, and truancy referral checklists.

→Ideal for: superintendents, principals, assistant principals, and attendance/truancy officers.

Topic:  You Have the Right to Remain a Student: First and Fourth Amendment and Related Issues in Schools

Date:   February 2, 2027

Students don't leave their constitutional rights at the schoolhouse gate — but they don't walk in with the same rights as adults on a public sidewalk, either.  That gap is exactly where school leaders get into trouble.  This session tackles two of the most active areas of student-rights law: free speech (on campus and off, in person and online) and search and seizure (backpacks, lockers, phones, and vehicles).  We'll cover what the courts have said about disciplining students for off-campus speech, how far administrators can go when searching a student or their device, and how to train staff to recognize the difference between a lawful search and a lawsuit waiting to happen.  KSB's attorneys will provide practical, scenario-based guidance throughout.

*Participants will receive updated search-and-seizure guidelines and a free-speech decision-tree checklist for building administrators.

→Ideal for: superintendents, principals, assistant principals, and school resource officers.

Topic:  Where Do They Belong? Every Enrollment Question That Isn't Option[al]

Date:   April 21, 2027

Just because it's not called 'Option Enrollment' doesn't mean it's optional.  Is a homeschool student entitled to take band, art, and “recess” part-time?  Which address actually establishes residency when a student splits time between two parent homes in two different school districts? What happens to enrollment and eligibility when a student becomes court-involved or enters foster care mid-semester?  And once a student is enrolled, what does it take for them to be eligible to play, perform, or compete?  This webinar rounds up every enrollment scenario that doesn't fall under the option enrollment statutes, giving school leaders a practical framework for handling part-time enrollment, residency determinations, court-involved, foster, and homeless-student enrollment, and activity eligibility rules.

*Participants will receive a residency quick-reference guide and checklist of items to capture on enrollment forms.

→Ideal for: superintendents, principals, activities directors, and enrollment/registrar staff.

Please reach out to ksb@ksbschoollaw.com if you have any questions. You can use this link to register.

2026-2027 QUARTERLY WEBINAR SERIES

Play Like a Pro (And Keep Your District Out of the Penalty Box)

It's game day and an open enrollment for a special education student just landed in your inbox.  A student hasn't been to class in three weeks and you're not sure whether it's time to escalate to the truancy officer.  A student's TikTok mocking her English teacher just went viral, and you need to know exactly where you stand.  A parent owns two houses and swears their kid lives at the one in your district, but everyone in town knows different.

South Dakota school leaders face the same high-pressure decisions every school year.  KSB School Law is offering a quarterly webinar series specifically designed for South Dakota school administrators.  This year’s series follows a student from the front door to the sidelines and back again: how they get in, whether they show up, what rights they carry once they're here, and every other way they might land on your enrollment roster. Each one-hour session comes loaded with the forms and checklists you need to put the law into practice.  Click here to register.

Topic: Welcome to the Never-Ending Transfer Portal: Surviving Open Enrollment
Date & Time: October 6, 2026 at 12:00 PM

College athletes aren't the only ones changing schools with regularity these days. Every year, South Dakota families use open enrollment to move their kids to the district (or the program) that fits best, and every year, school leaders get tripped up on the same handful of deadlines and capacity decisions. Under SDCL 13-28-40 through 13-28-47, open enrollment turns heavily on the written capacity standards each board must adopt. Add in the twice-a-year application deadlines (the last Friday in September for first semester and the last Friday in January for second), the law regarding accepting siblings, the wrinkles around alternative-instruction students, and some persistent myths about the process for accepting or denying students with IEPs, and it's easy to see why this topic keeps prompting legal questions. KSB's attorneys will walk through the full open enrollment lifecycle — from setting capacity standards and reviewing applications to handling denials.
*Participants will receive scripts and checklists for central office staff, sample capacity resolutions reflecting common practices so you don't have to guess about all the blanks to fill in, and sample response letters ready to drop into your own process.
→ Ideal for: superintendents, principals, special education directors and central office staff who handle open enrollment calls, questions, and applications.

Topic: Bueller? Bueller? Getting Serious About Attendance and Truancy
Date & Time: December 1, 2026 at 12:00 PM

Ferris Bueller made skipping school look effortless. For the students missing class today, the reasons — and the legal consequences for schools that don't respond correctly — are a lot more complicated. Chronic absenteeism has become one of the defining student issues of the last several years, and South Dakota's own numbers show truancy-diversion success rates falling. Schools are under increasing pressure to intervene earlier, document more carefully, and know exactly what South Dakota law requires. This webinar walks through the full attendance continuum: drafting board policy and student handbooks to address absences, running a legally sound attendance-intervention process, the school board warning and report-to-the-truancy-officer steps required by SDCL 13-27-16, the truancy officer's duties and complaint authority under 13-27-17 through 13-27-20, coordinating with the state's attorney on filings, and avoiding the compliance traps that come with tracking attendance for IEPs and 504 plans.
*Participants will receive information on what to check in your attendance policies, sample intervention plan templates for common scenarios, and truancy referral checklists.
→ Ideal for: superintendents, principals, assistant principals, and attendance/truancy officers.

Topic: You Have the Right to Remain a Student: First and Fourth Amendment and Related Issues in Schools
Date & Time: February 2, 2027 at 12:00 PM
Students don't shed their constitutional rights at the schoolhouse gate — but they don't walk in with the same rights as adults on a public sidewalk, either. That gap is exactly where school leaders get into trouble. This session tackles two of the most active areas of constitutional law schools face: free speech (on campus and off, in person and online) and search and seizure (backpacks, lockers, phones, and vehicles). We'll cover what the courts have said about disciplining students for off-campus speech, how far administrators can go when searching a student or their device, and how to train staff to recognize the difference between a lawful search and a lawsuit waiting to happen. KSB's attorneys will provide practical, scenario-based guidance throughout.
*Participants will receive updated search-and-seizure guidelines and a free-speech decision-tree checklist for building administrators.
→ Ideal for: superintendents, principals, assistant principals, and school resource officers.

Topic: Where Do They Belong? Every Enrollment Question That Isn't Open Enrollment
Date & Time: April 6, 2027 at 12:00 PM
Just because it's not called "Open Enrollment" doesn't mean it's open to interpretation. Can an alternative-instruction (homeschool) student take band, art, and part-time classes — or open enroll just to play sports? (The Department of Education has taken a position on that; we'll cover it.) Which address actually establishes school residency when a student splits time between two parent homes in two different districts? What happens if a parent owns two houses? How does a school determine if a student is homeless under McKinney-Vento? This webinar rounds up every enrollment scenario that doesn't fall under the open enrollment statutes, giving school leaders a practical framework for handling part-time enrollment, residency determinations, and foster and homeless-student enrollment.
*Participants will receive a residency quick-reference guide and checklist of items to capture on enrollment forms.
→ Ideal for: superintendents, principals, activities directors, and enrollment/registrar staff.

Please reach out to ksb@ksbschoollaw.com if you have any questions. You can use this link to register.

KSB’s Husker Predictions…

KSB’s Husker Predictions…

Every August for nine years running, the staff of KSB School Law have set aside their actual jobs to do something far more important: predict, in painstaking and increasingly unhinged detail, exactly how the Nebraska Cornhuskers are going to break our hearts this season.  Some years we're right.  Most years we're not.  Here's 2026.  (Buckle up…..)

KAREN’S PREDICTION:

VIA CERTIFIED MAIL, EMAIL, AND SCREAMED INTO THE VOID

To whom it may concern: 

This letter serves as formal notice of claims and a demand for relief for my clients, Husker Fans Everywhere ("Plaintiffs"), a certifiable class of individuals who have, in reliance on decades of false hope, suffered severe emotional distress for the past two decades.  See. e.g.  KSB Husker Football Predictions Are In (Tanner Lee era); KSB Predictions for Season 1 Under Frost (no explanation needed); The Blog Post You Wait All Year For (Rhule era begins); KSB's Husker Predictions… (Dylan Raiola's freshman year). 

I. STATEMENT OF FACTS

Plaintiffs are a class of otherwise rational adults who, every August, willingly re-enter a relationship they know to be abusive.  Defendants have, with actual malice and a truly impressive lack of competence, constructed a schedule and fielded a football team specifically engineered to maximize suffering, including but not limited to:

1. Scheduling rival opponents whose fanbase includes at least four individuals in counsel's own office (and one Notre Dame fan, whose gloating rights are legally dubious but exercised anyway), guaranteeing weeks of insufferable gloating;

2. Placing at least one (1) genuinely winnable game directly before at least one (1) unwinnable game, for the sole purpose of inducing hope immediately prior to its systematic destruction; and

3. Continuing, year after year, to allow Vegas to set a win total that entices certain members of the Plaintiff class bet on, lose, and then relitigate at excruciating length at the KSB weekly Monday morning meeting. (see Bobby, generally). 

II. ITEMIZED SCHEDULE OF ANTICIPATED HARM (2026 SEASON)

In support of damages, counsel submits the following game-by-game forecast of emotional injury:

Projected Final Record: 6-6. Bowl eligible.  Nothing more.  Nothing less.  Exactly the amount of hope required to guarantee Plaintiffs’ continued self-harm in 2027.

III. DAMAGES

Plaintiffs seek the following relief:

• Compensatory damages for pain, suffering, and the fair market value of every stupid "Our Red Burns Brighter" t-shirt purchased;

• Emotional distress damages, calculated at one (1) unit of despair per point Nebraska trails at halftime, times the number of kids now locked out of selling Runzas in Memorial Stadium; and

• Injunctive relief, specifically a gag order on Steve and Jordan, whose smugness re: Michigan constitutes a separate and ongoing tort not addressed in this filing.

IV. SETTLEMENT DEMAND

In lieu of litigation, Plaintiffs would accept the following in full satisfaction of all claims:

1. One (1) bowl game that does not require a map to locate;

2. A win over Iowa in any form, fashion or manner whatsoever;

3. Six consecutive weeks without a single "this is the year" article appearing in any Nebraska-based publication; and

4. Emotional immunity, retroactive to 1997, for anyone who still believes.

Failure to remedy the above by kickoff on September 5 will leave Plaintiffs no choice but to continue watching anyway, out of habit, love, and a complete inability to quit something that keeps hurting them — which, frankly, may be the most damning evidence of distress in this entire letter.

Please govern yourselves accordingly.  Go Big Red.

Yours very truly,

Karen A. Haase
Counsel for Husker Fans Everywhere

cc: My therapist, who has heard all of this before, and is now billing me for reading this blog post 

STEVE’S PREDICTION: 

The Huskers will start strong against inferior competition, as they usually do, with wins against Ohio, Bowling Green, and North Dakota.  They win closer-than-they-should-be games against Michigan State and Maryland.  Woo hoo!  A 5-0 start!  Then, the wheels fall off.  The good news?  Apparently, fewer and fewer people will be there to see it!  Blowout losses to Indiana and Oregon.  An ugly defeat at home at the hands of Washington.  They lose a winnable game at Illinois, but follow up with a win at Rutgers.  I’d love for the Huskers to beat the evil team from Ohio, but they just can’t do it.  They end the season with yet another painful loss to Iowa.  A 6-6 finish, another low-quality bowl game, and the grumbling begins about the need for a new head coach. 

BOBBY’S PREDICTION: 

I love and hate this blog post.  It’s like Steve staring at a new box of Oreos; or Dylan Raiola liking “nature” in Oregon, but not his new depth chart.  Just as I’m dreaming through the reasons why this team might turn a corner—finally some competent OL coaching; a deeper DL; and a quarterback with a lot of live rounds—I’m forced to step back into reality.  This is an old team, which is usually good.  But those combined snaps across all 3 phases are a lot of the same players.  And then there’s a brand new defense and a bunch of new coaches who were only able to snag some mercenaries to fit their preferences.  I desperately want to feel alive inside this August, but I can’t move the needle off 7-5.  I promise, I’ve tried.  That’s already north of the oddsmakers’ regular season win line, which has been elusive for 15 years.

Wins: Ohio, Bowling Green, and North Dakota.  These aren’t Houston Baptist-esque teams.  We’ll know a lot in the first 3 weeks, but I think we get it done.

Losses: Indiana, Oregon, and Ohio State.  Getting 2 at home is nice, but I fear it won’t matter.  Maybe we lose by 21 instead of 35.  We’re not in the same stratosphere in terms of roster talent.  Plus, Cignetti is a witch with Mark Cuban money now.

That leaves half the schedule in the tossup category.  I think each of these games has a spread within 6-10 either direction.  Vegas thinks we win 3 or 4 of those, which makes it sound harder than it really should be, but we haven’t yet proven we beat the teams we “should.”  I think we get Michigan State in year 1 of Fitzy’s return.  I think we get Rutgers and Maryland, though both make me nervous.  I’m guessing we only get 1 of Washington, Illinois, or Iowa.  I’d love it to be Iowa, but apparently only an interim HC can beat them.  So, it’s 7-5, with a shade toward 6-6 compared to 8-4 if I had to hedge. 

 SHARI’S PREDICTION:

The Huskers open with a two-game winning streak and Husker Nation starts whispering "Big Ten title" like it's 1995 again. We win the next two games and the excitement continues.  Then October happens.  I think we could possibly lose all of those games.  At this point Husker Nation is getting anxious.  We have rebound wins against Illinois and Rutgers.  Those two wins come with all the talk of six wins and bowl eligibility.  That glimmer of hope is quickly diminished by two disappointing losses to Ohio State and Iowa.  We will hear more about how it was a “building year” and the talk of the transfer portal will heat up once again.  

COADY’S PREDICTION:

Thank goodness for the cupcake beginning (knocking on wood as I type).  Nebraska will start 4-0, because the new Fightin’ Fitzgeralds aren’t quite up to ending the Huskers’ season-beginning winning streak in East Lansing on September 26.  After that, the only clear win will come at Rutgers.  Everything else is almost surely a loss (Indiana, at Oregon, Washington, Ohio State, and at Iowa***) or a toss-up (Maryland, at Illinois).  Assuming that Nebraska splits those toss-ups, the Cornhuskers finish 6-6.  This team is quite possibly improved, but the schedule will make it too tough for the record to show very much improvement.

***Author’s Note: To my core I don’t believe that Iowa is as vaunted an opponent as the New-and-Improved-Hoosiers©, Oregon, Washington, or Ohio State.  But unless and until Nebraska shows that it can end our long national nightmare Day-After-Thanksgiving Tradition of watching an excrutiatingly-frustrating loss while non-Nebraska-fan family members stand to the side aghast at being exposed to the bewildering existence of Nebraska fans, then Iowa is firmly in the Loss Column for purposes of KSB Husker Predictions.

JORDAN’S PREDICTION: The Sound of Silence

A few familiar beeps followed shortly by the clang of metal on glass, the smacking of lips, and a salacious exhale.  The clattering of fingers on a keyboard, a frustrated growl under the breath, and a string of cuss words never before chained together yet forged with the menace of an epithet and the promise of being dropped on a live recorded webinar.  A rhythmic, raspy rumble keeping time like a metronome with a sinus infection.  Whether it's Steve rapaciously razing his first Hot Pocket of the day, Karen building her latest slide deck, or me breathing 25% too loudly, these are the deeply, viscerally disturbing sounds of a silent KSB Office at 10:22 in the morning, which is both too early and too late for any of this.

Sometimes quiet is too quiet.  There’s a Simon and Garfunkel line I’d love to use here, but Copyright Compliance Czar Bobby says quoting a lyric on a firm blog is how you find out what a cease and desist looks like. Use your imagination. It’s the one about darkness. You know the one.

Which brings me to Husker Nation.

It has just been too quiet.  Maybe that's a good thing.  Maybe you've all resigned yourself to a lifetime of mediocrity in a football conference only your ego truly ever fit in.  And yet I can't shake how unsettling this particular silence feels.  It's the deafening silence of suddenly not hearing your kids playing in the next room and knowing, immediately, that something is wrong.  Very wrong. Even the program has gone quiet, barely making a headline all summer, and that worries me more.  Rhule might be instilling a quiet confidence in a team that used to fold over backwards every fourth quarter like the flimsy folding chair I broke at last year's teachers conferences.

And it is with this fearful, fitful uneasiness that I predict the best Husker season in recent memory.  The starting schedule has the structural integrity of one of Steve’s morning Hot Pockets, molten in the middle, frozen at the edges, and guaranteed to collapse the moment anyone bites down on it.  Five easy wins.  After that, they only drop three: Indiana, Oregon, and Ohio State.  Which means yes, I am on the record, in writing, predicting Matt Rhule beats Kirk Ferentz in Iowa City on Black Friday.  Please screenshot this so my children can find it someday.

Nine and three, a big time bowl, and a near miss at playoff contention.  I suspect this is the last offseason of silence for a long while.  Enjoy it, Husker Nation.  I can't say you deserve it.  You need it.  But more than that, you need one season built to hold a former lineman (or at least last year’s quarterback), not a folding chair pretending to be furniture.

TYLER’S PREDICTION: 

Last year, rather than prognosticate on the infinite possibilities of the nation’s luckiest unlucky team (or unluckiest lucky team, depending on your feelings) I left my decision making to flipping a quarter.  It went…fine? Fate had them at 5-7 and they ended up at 7-5.  So pure chance was not materially different from my colleagues (9-3 guys? Come on now).

So this year, we’re doing fate again, but with a twist of predicting scores as well. 

For each game, I rolled seven dice for each team.  I then dropped the highest and lowest dice from each roll and totaled the rest.   We have to have some consistency here. Otherwise, this process would be arbitrary. 

Will this be closer?  Probably not.  Will this be more entertaining to me than reading Husker blogs?  Probably yes.

Here is what the dice gods dictate:

So there you have it. 6-6. The dice have spoken. They probably didn’t speak accurately, but they’ve definitely spoken. 

SARA’S PREDICTION:

This summer, America flocked to theaters to watch The Odyssey: a story about a man who spends an absurd number of years suffering through one obstacle after another, convinced that eventually he will make it home. Naturally, I thought of myself and my delusion regarding Nebraska football. We are now entering Year Four of the Matt Rhule era, which means we have officially reached the point where we ask, is this the year? (All Husker fans collectively whisper - “we have said that before.”) Still, I am predicting 7–5.

We open with Ohio, Bowling Green, and North Dakota. Nebraska should win all three games, and I see absolutely no reason to complicate this. Nebraska then heads to Michigan State, where I’m predicting another win because at some point the plot has to move forward. Maryland comes to Lincoln for Homecoming, and I’m taking another win. Just like that, Nebraska is 5-0. (The fans scream Yes!) And that is when Nebraska fans make our annual mistake: hope. Someone will post a graphic comparing Matt Rhule’s Year Four record to Tom Osborne. 

Then comes Indiana. Loss. Then Oregon in Eugene. Loss. Suddenly we are 5-2. Nebraska returns home to play Washington on Halloween. This feels like exactly the game Nebraska has spent the last decade losing by four points after committing a turnover that causes 90,000 people to simultaneously stare into the middle distance. But, remember . . . hope! So not this year. Nebraska wins and becomes bowl eligible. 

Hilary Duff (truly iconic - top 3 best concert) is touring again, Nebraska is going to a bowl game, and millennials everywhere are being asked to believe that the things we loved in 2003 can actually come back. This is what dreams are made of. (Can you tell I am a millennial? Don’t forget . . . Bobby is what they call an “elder millennial.”)

Then comes November. Illinois on a Friday night in Champaign? Absolutely not. Nebraska falls to 6-3. Rutgers comes to Lincoln, Nebraska gets win number seven. Next, Ohio State comes to Lincoln. I appreciate optimism. I also appreciate being a realist. Loss. 7-4.

Which brings us, inevitably, to Iowa. Eleven games. Months of travel. Trials. Triumphs. Monsters. Questionable officiating. Reddit prophecies. A brief period when we convinced ourselves we were nationally relevant. And after everything Nebraska has endured, one final obstacle stands between us and home: Iowa.

I hate it. I reject it. I have nevertheless seen enough Nebraska-Iowa games to know how this ends. It will be ugly. It will be cold. Iowa will punt approximately 19 times. Nebraska will outgain them by 170 yards. And then Iowa will win on a field goal.

Final prediction: 7-5. Not exactly the triumphant return Husker fans have been promised, but another bowl game and another winning season. 

AMANDA’S PREDICTION:

My oh my, imagine my surprise when I cracked open the Husker schedule this year and saw we're hosting the state of Ohio three times.  Ohio on September 5.  Bowling Green on September 12.  Ohio State on November 21.  At what point does this stop being a schedule and start being a courtship?

Now, as someone who roots for Ohio State (I know, I'm the worst) with roots that run deep in the OH, I did briefly consider whether I could ethically predict the Huskers take the L against all three.  But as a woman of integrity, I have to be honest, and so here we are: Nebraska goes 2 for 3 against my people.

With all that said, I'm predicting a 6–6 season.  How does that shake out? Nebraska wins against Ohio, Bowling Green, North Dakota, Michigan State, Maryland, and Rutgers.  Nebraska takes the "L" against Indiana, Oregon, Washington, Illinois, Ohio State, and Iowa.

In the meantime, while we wait to see how this all shakes out, go Huskers.  Mostly.

MATT’S PREDICTION:

Another season for the Huskers! Well let’s see how we can get to 6-6 on the season.  

Ohio coming to Lincoln should be a win for the Huskers.  I think it will be closer than it should be, but they get it done and win by 10.  31-21 over the Bobcats!

Bowling Green coming to Lincoln should be another victory for the Huskers.  I think the Huskers win this handily 38-14.  I feel like the defense will get a turnover or two, maybe a pick six.  

North Dakota coming to Lincoln won’t be close and we could even see the backups.  The Huskers win this 48-17.

Finally get into BIG TEN play!  Going to East Lansing, this could be a defensive battle.  I do feel that the Huskers pull this one out late and win 24-21.

Maryland and the Huskers both undefeated going into this game.  I feel like it’s a high scoring game and Maryland wins a big one in Lincoln.  42-38 type of score.

The next two games are not even close.  I think Indiana wins this one big.  The Huskers are just out matched, they just don’t have the athletes to compete.  That’s funny to say with Indiana, but it’s true!  49-21.

Oregon is another blow out and once again the Huskers just don’t have the athletes to compete with Oregon.  56-17.

I think they get back on track against Washington since it’s at home.  I think the offense gets back on the same page and they start running the ball again and the defense dies just enough.  24-21.

Huskers go on the road to Champagne and lose a close one. Since Brett has been at Illinois he hasn't lost against the Huskers.  I think he keeps it rolling and wins another.  38-31.

The Huskers stay on the road and go to New Jersey and get a big win against Rutgers.  The defense made a big stop on the last drive.  31-28.

Now they host Ohio St. and of course get blown out.  Jeremiah Smith goes off and gets career high numbers.  45-17.

I know Matt Rhule struggles against the Hawkeyes and it continues.  The Hawkeyes ground and pound the Husker defense.  27-17.  Another average season for the Huskers.  GOOOOOOO Sker’s!

Mind the Gap: Your Negotiations Prep Starts Now

We are only a few weeks into the school year, and KSB attorneys have already drafted a stack of side letter agreements.  Why?  Because districts keep finding holes and gaps in agreements they negotiated months ago.  A side letter patches the problem, and it also proves a point.  The time to think about what belongs in your negotiated agreement, and more importantly what does not, is right now.

The statutory clock is already ticking.  The association's request for recognition is due September 1.  Your response is due October 1.  You probably received and responded to it months ago, or your local association is certified by the CIR.  If you have questions about that, reach out.  More importantly, negotiations must begin November 1, roughly ten weeks and two board meetings from now.  Here is how we recommend you spend that time.

Start With What You Want Out or Changed

Most districts prepare for negotiations by deciding what they will offer.  Fewer prepare by deciding what should be changed or what they want to remove.  Pull your current agreement and read it as though you have never seen it.  Hunt for terms that are unclear, unlawful, obsolete, or simply missing--are there things you’re doing in terms of pay and benefits that aren’t reflected in the agreement?  Nearly every side letter we draft midyear traces back to language nobody questioned at the table.  If it has been a while since anyone reviewed your agreement, or if nobody ever has, ask your legal counsel for that review now.

Book Your Comparability Study Early

For your total compensation to be comparable and lawful, it must fall within 98 to 102 percent of the array CIR Midpoint, an average of the actual midpoint and the mean of total compensation within your array.  Land outside that band and you have handed the association its argument.  A reliable comparability study tells you where you sit before the association tells you where it thinks you sit.

If you’d like KSB to run a comp study for you, book that study early.  Demand for comp study time climbs every week between now and November 1, and the districts that call in October may not get it by November 1.  If the 98 to 102 percent standard is new to you, reach out to us about a comp study generally, because other entities like NASB also offer comparability software.   If the standard is familiar but your last study is not recent, you already have your answer.

Confirm Your Legal Array

We have heard every objection.  “We always use our activity conference.”  “We have an agreed upon array with our local union.”  “Our cash in lieu inflates our salary, so the array does not matter.”  Sticking with what you “have always done,” without confirming your proper array, amounts to negotiating blind.  Use a unique array if you want one, but as a second data point, not the data point.  Either way, know your actual, legal array first.

Read Your Neighbors' Agreements

Salary and benefits grab the headline, but prevalence drives much of the rest.  If a practice is prevalent within your array, the Commission may order you to follow it, PTO and sick leave banks included.  You cannot assess prevalence without reading the negotiated agreements of the other districts in your array.  We have recommended this for years.  Make this the year you actually do it.

The Calendar Is Already Running

*On or before March 25 of the year preceding the contract year in question, or within twenty-five days after certification of the amounts to be distributed under the Tax Equity and Educational Opportunities Support Act pursuant to Neb. Rev. Stat. § 79-1022 for that contract year, whichever occurs last in time. This year, with a long legislative session, it might be the TEEOSA date that matters most.

Questions?

If you have questions, contact your district's legal counsel or email us at ksb@ksbschoollaw.com.  Better yet, Shari Russell is THE person to talk comparability.  Drop her a line at shari@ksbschoollaw.com or give her a call at 402-804-8000.

Stumped By Student Records

Every August, the KSB Crew rolls out looking for America's greatest drive-ins, diners, and dives staff in-service days in order to prepare educators with the latest legal updates they need to take on the new school year.  If you've had one of us in your building, you know we'd rather get to the questions and issues that matter most to you rather than simply drone through policy and handbook updates (though some of that can't be avoided!).  As a result, we always try to leave time for a good ole game of “Stump-The-Idiot” to take on your toughest questions.  Now, we won't mention which KSB attorney got stumped during Karen's Wyoming leg of presentations, but we did want to share that question and the best lawyerly answer we can give it. . .  it depends!

The Question

A lot of student information in the classroom or other service areas, such as a student's visual schedule or behavior chart, or a staff members' own list of students to receive services, could potentially be seen by other students or visitors to the educational environment.  Is this a FERPA issue?

The Answer

As promised, it depends!  A key threshold question will be whether or not the document or record has been maintained as defined by board policy.  Even if so, a significant amount of this type of information may qualify as “directory information” under federal law and board policy.  Finally, the question will likely turn on who is disclosing the information.

FERPA Protects Records That Are Intentionally Maintained

Start with the rule everyone remembers.  The regulations require that “[t]he parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records,” subject to the exceptions listed elsewhere in the rules.  34 C.F.R. § 99.30(a); see also 34 C.F.R. § 99.31.

The phrase doing the work is “education records.”  The regulations define that term to mean “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.”  34 C.F.R. § 99.3.

Read those two provisions together an

d the answer to a great many classroom questions falls out.  FERPA protects personally identifiable information drawn from records the district maintains.  A document the district does not maintain is not an education record at all, and FERPA never reaches it.

So what does “maintain” mean?  The regulations never say.  FERPA leaves the term undefined, which hands the question to your board.

Your student records policy should answer it.  Pull that policy before the next question lands on your desk and read the definition your board actually adopted.  If the policy says nothing, or if the definition no longer matches how your staff handle records day to day, work with your board to fix it.  A definition that tracks your real procedures protects your staff far better than one drafted for somebody else's district.

The Supreme Court took up the question of applying this limitation to classroom work in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426 (2002).  Students in an Oklahoma district scored one another's assignments and reported the results to the teacher.  A parent sued, arguing that the practice disclosed education records without consent.  The Court disagreed.  It held that peer-graded work is not “maintained” within the meaning of FERPA, reasoning that the statute contemplates records kept in a filing cabinet in a records room or on a permanent secure database, not a paper a classmate holds for a few moments.  Id. at 432-33.  The Court also observed that a student grading a classmate's work does not act for the institution.  Id. at 433.  Other students saw the work, and FERPA still did not apply, because nobody maintained it.

Directory Information May Generally Be Disclosed

Even when the district maintains a record, FERPA carves out directory information.  “An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance” of the types of information it designates, the right to refuse that designation, and the window to object.  34 C.F.R. § 99.37(a).

That carve out reaches further than most people expect.  Boards routinely designate student name, grade level, class assignment, participation in activities, awards received, and in some districts the student schedule itself.  If your board designated it and no parent opted out, you may disclose it.

Pull the policy here too.  Read the list your board adopted and ask two questions.  Does it sweep in information your community would not expect the district to release?  Does it leave out information your staff share every day without a second thought?  Either answer causes problems, and you fix both with the board reviewing policy rather than in the middle of a complaint.

Then track your opt outs.  A parent who refuses the designation converts ordinary directory information into information you must protect.  Those students’ information need closer handling on the bulletin board, in the program, and yes, on the visual schedule.

Who Disclosed

FERPA regulates schools.  It governs disclosures by educational agencies and institutions and by the officials acting for them.  A parent who posts a child's behavior chart on social media, or a student who tells a classmate about a service schedule, does not violate FERPA, because neither one is the school.  Keep the distinction straight in both directions, though.  A parent or student putting information out in public does not clear the district to confirm it.

Examples from the Feds

The office charged with enforcing FERPA has taken up classroom display more than once.  Three sources are worth noting.

•Letter to Westlake City Schools (FPCO Oct. 29, 1990) is the most useful of the set.  FPCO advised that a teacher may not post a roster or listing of student grades by name, Social Security number, or other personal identifier without prior parental consent, and suggested a code that the student and teacher recognize but classmates do not.  It also framed the standard that has governed ever since: FERPA does not interfere with a school's or a classroom teacher's ability to carry out what are generally considered normal and legitimate educational activities, so judging the privacy impact of classroom practice calls for a thoughtful, common sense, and flexible approach.  Display of exemplary student work survived under the “awards received” prong of directory information.  34 C.F.R. § 99.3, subject to the conditions in § 99.37.

•Letter to Parent Regarding Classroom Activities (FPCO Aug. 3, 2018) (Tynes Elementary) repeats the same normal and legitimate educational activities language, applies the same flexible approach, and dismisses a complaint about classroom work.

•The SPPO FAQ asking whether FERPA permits school officials to release information they personally observed draws a clean line.  FERPA reaches education records and personally identifiable information drawn from them.  It does not reach what a school official knows through personal knowledge or observation.

So what is the answer?

If a student has a visual schedule on her desk that includes “speech with Ms. Kathy” at 10:00 on Tuesdays, you probably aren’t violating FERPA the night of parent-teacher conferences.  This visual schedule is not going to be “maintained” by the district and this is a form of directory information since it is functionally a class schedule.  But if you change the facts even a little the whole answer could change.  

Stumped?

It really isn't a good question unless your lawyer can answer with… it depends.  If you have any other questions to stump your favorite school law attorneys, don't hesitate to reach out to us at ksb@ksbschoollaw.com or at 402-804-800

Is the Grass Greener? A South Dakota Open Enrollment Survival Guide

Somewhere in your district right now, a parent is convinced the school one town over has better teachers, shinier gym floors, and a lunch menu straight off a cruise ship.  So they fill out an open enrollment application, and it lands on your desk.  Although this pattern is repeated every year across South Dakota, every year the same handful of deadlines and denial decisions trip up administrators.  Before the applications start stacking up, let's run through the ground rules.

Your capacity standards are the whole ballgame.  Under SDCL 13-28-44, every board must adopt specific, written capacity standards for its capacity of a program, class, grade level, and school building operated by the board and the pupil/teacher ratio.  Here's the part people forget: those standards are the only thing you're allowed to use to accept or deny an application.  Not "everyone knows that family."  Not the student's disciplinary rap sheet.  Just capacity—determined by those standards.  If your resolution hasn't been dusted off since the day it was adopted, now is the time for your board to review it. 

Mind the deadlines and the five-day clock.  Applications are due the last Friday in September (first semester) and the last Friday in January (second semester) under SDCL 13-28-43.  You must review them in the order received after you have requested and received the complete student records (including all special education records).  You have five days from the date of your decision (not the date you receive the application) to notify the applicant.  Also remember, the school board does not need to approve or disapprove applications, and this activity can be delegated to “the board’s designee” such as the superintendent.

Siblings cut the line.  If an applicant is the sibling of a student already open-enrolled and currently attending your district, that application jumps to the front and receives priority over everyone else. 

The IEP myth that will get you in trouble.  Repeat after us: a student needing special education is never an automatic "no."  If you think you can't meet the student's needs, there is a process you must follow prior to denying the application.  Under SDCL 13-28-42.1, you must pull the records and convene an IEP team meeting with representatives from both districts. 

As always, reach out to us with any questions at ksb@ksbschoollaw.com or 402-804-8000. 

Looking for more information on student-related issues? KSB School Law's 2026–2027 Quarterly Webinar Series — "Play Like a Pro (And Keep Your District Out of the Penalty Box)" — is built specifically for South Dakota administrators and follows a student from the front door to the sidelines and back: how they get in, whether they show up, what rights they carry once they're here, and every other way they land on your roster. Four one-hour sessions, each loaded with the forms and checklists to put the law into practice:

• Welcome to the Never-Ending Transfer Portal: Surviving Open Enrollment (October 2026)

• Bueller? Bueller? Getting Serious About Attendance and Truancy (December 2026)

• You Have the Right to Remain a Student: First and Fourth Amendment Issues in Schools (February 2027)

• Where Do They Belong? Every Enrollment Question That Isn't Open Enrollment (April 2027)

Be on the lookout for a blog post with registration information in early September!

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled?  The superintendent loved the idea of the school having specialized help for the student without having to pay for it.  Three years later, the provider is still there, staff plan around her schedule, and the student's day is built partly on her work.  On June 1, 2026, Nebraska Medicaid issued Provider Bulletin 26-06, and its changes took effect on July 1.  The bulletin doesn't undo that history, but it does change what the arrangement requires going forward.

Quick note: if you’re a superintendent, principal, or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What the bulletin says

The bulletin makes two changes relevant to schools.  First, Medicaid treats ABA services delivered in a school setting as part of school-based services reimbursement under NAC Title 471, Chapter 25 and the Medicaid State Plan.  Independent ABA providers may not bill Medicaid directly for services delivered at a school.  If ABA happens in your building and Medicaid pays for it, the school owns the billing pathway, and the services must meet Medicaid's updated ABA service definitions, also effective July 1.

Second, for dates of service on and after July 1, individuals receiving DD waiver services may receive ABA assessments (HCPCS codes 97151 and 97152) regardless of age, and for waiver recipients only, providers may recommend and use those assessments for non-ABA purposes.

School plan requirement

Medicaid's service definitions have long required a school plan for ABA therapy in any educational setting, public or private: setting-specific target behaviors, behavior reduction goals focused on academic engagement, and a time-limited approach with a clear transition shifting instructional control to school staff.  What the updated definitions now make explicit is the piece that matters most to administrators: the Individualized Treatment, Rehabilitation, and Recovery Plan must include a separate school plan within the student's IEP for Medicaid reimbursement.  One piece of good news here: daycare and after-school settings remain exempt from these requirements.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks.  FAPE means the services the IEP team determines the student needs to make appropriate progress; Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain.  When the bulletin says schools are "responsible" for ABA services in school settings, read that as a statement about billing responsibility.  It does not declare that every district must provide ABA or that ABA is a required related service for any particular student.

The harder question: you already let a private provider in

Many districts have permitted privately-retained or Medicaid-funded ABA providers to work with students on campus.  Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes.  Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary.  But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure.  If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff have built the student's daily programming around the provider, a parent can argue the district itself treated ABA as necessary, making the provider's removal look like a unilateral reduction in services.  It also means that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE.  Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services.  Expect parents to argue that since Medicaid recognizes only the school for school-based ABA billing, the school must now provide the services.  That conflates billing with entitlement, but it still must be addressed through the IEP process, with the team's reasoning documented.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled? Three years later, the provider is still there, staff plan around her schedule, and the student's day is built partly on her work. The arrangement has quietly become load-bearing, and it is worth understanding what South Dakota Medicaid does — and does not — require of the school when private ABA happens in your building.

Quick note: if you’re a superintendent, principal or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What South Dakota Medicaid actually says

ABA is not an eligible school-district service. Under the School District Services manual, the covered school-district services billable to Medicaid are limited to psychological, physical therapy, occupational therapy, speech therapy, audiology, and nursing services, each tied to a specific CPT code. ABA is not on that list, and school districts cannot bill Medicaid for it. When an agency operating a special education program provides a Medicaid-covered service that is not an eligible school-district service — the manual names ABA specifically — that agency may only enroll as a group of professionals and bill for the non-school-district services. So if ABA happens in your building and Medicaid pays for it, the billing pathway belongs to the outside provider, not the district.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks. FAPE means the services the IEP team determines the student needs to make appropriate progress; Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain. The fact that South Dakota lets an outside ABA provider bill for services delivered in school says nothing about whether ABA is a required related service for any particular student. It does not declare that every district must provide ABA, and it does not make the provider's presence an IEP-team decision by default.

The harder question: you already let a private provider in

Many districts have permitted privately retained or Medicaid-funded ABA providers to work with students on campus — and South Dakota's rules make that permission allowable because the outside provider can bill directly without the school in the loop. Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes. Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary. But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure. If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff have built the student's daily programming around the provider, a parent can plausibly argue the district itself treated ABA as necessary for FAPE. That the provider bills Medicaid or the parent’s private insurance independently does not insulate you here — the risk lives in how the district treats the service, not in who cuts the check.  You also run the risk that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because they will argue that you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE. Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services. Note the wrinkle South Dakota adds — because Medicaid recognizes the outside ABA provider, not the school, as the billing entity for school-based ABA, a district that concludes ABA is necessary for FAPE cannot assume Medicaid will fund the district's own delivery of it. That is a reason to think carefully at the IEP table, and to document the team's reasoning either way.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled? Three years later, the provider is still there, staff plans around her schedule, and the student's day is built partly on her work. The arrangement has quietly become load-bearing, and it is worth understanding what Wyoming Medicaid does — and does not — require of the school when private ABA happens in your building.

Quick note: if you’re a superintendent, principal, or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What Wyoming Medicaid actually says

ABA is an eligible school-based service. Under the School-Based Services Program manual, the covered school-based services billable to Medicaid are limited to psychology and counseling, physical therapy, occupational therapy, speech-language and hearing, and nursing and health services, each tied to specific CPT and HCPCS codes. ABA falls within psychology and counseling services.  The manual addresses ABA directly and limits it to students under 21 with an autism spectrum disorder diagnosis, delivered or supervised by a licensed behavior analyst, and written into the student’s IEP or IFSP.  The district itself enrolls as the billing provider, and each rendering practitioner enrolls separately. So if ABA happens in your building, the billing pathway can belong to the district.  Because the manual publishes no ABA-specific code, confirm the correct code with the Department of Health before you bill.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks. FAPE means the services the IEP team determines the student needs to make appropriate progress. Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain. The fact that Wyoming lets a district bill for ABA delivered in school says nothing about whether ABA is a required related service for any particular student. It does not declare that every district must provide ABA, and it does not make the provider's presence an IEP-team decision by default.

The harder question: you already let a private provider in

Many districts have permitted privately retained or Medicaid-funded ABA providers to work with students on campus — and Wyoming permits that too, because Wyoming Medicaid also covers ABA outside the school program, so the provider can bill directly without the school in the loop. Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes. Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary. But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure. If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff has built the student's daily programming around the provider, a parent can plausibly argue the district itself treated ABA as necessary for FAPE. That the provider bills Medicaid or the parent’s private insurance independently does not insulate you here — the risk lives in how the district treats the service, not in who cuts the check.  You also run the risk that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because they will argue that you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE. Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services. Note the wrinkle Wyoming adds.  Because Wyoming Medicaid recognizes the district, not just the outside provider, as a billing entity for school-based ABA, a district that concludes ABA is necessary for FAPE may be able to bill Medicaid for its own delivery of it.  Reimbursement does not make the service necessary, but it removes one practical objection. That is a reason to think carefully at the IEP table, and to document the team's reasoning either way.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

Why Your District Needs a Digital Citizenship Assembly This Year

If you were with us at last week's joint SASD/ASBSD conference, you sat through our "Pain in the App" session, the one where we covered the state of technology in schools, South Dakota law, and deepfakes. Judging by how many of you cornered us afterward, the questions didn't stop when the slides did. The most common one? "How do we actually get this in front of our students?" Our answer: a digital citizenship assembly. Here's why it belongs on your calendar this year.

The research is not comforting. 

Start with what we walked through at the joint conference. Simply owning a cell phone correlates with worse reading comprehension at the elementary level, and it doesn't matter whether the child brings the phone to school or leaves it at home. Studies keep showing that having a phone merely in sight can measurably tank working memory and fluid intelligence. We are seeing state legislators regularly evaluate school law and the state of technology. The pendulum is swinging, and students are the ones caught in the middle of it.

An assembly won't fix a student's home screen-time habits overnight, but it puts the "why" in front of students directly, in their own language.

What a good assembly actually delivers:

The goal isn't to scare students off their phones. It's to help them build healthier habits with technology and understand that their online conduct follows them for life. A strong digital citizenship assembly gives students:

• A clear, memorable picture of how online behavior connects to real South Dakota law and real school authority

• The vocabulary to recognize bullying, harassment, and deepfake harm when they see it, and the confidence to report it

• A straight answer to the question they're all quietly asking: "Can I actually get in trouble for this?"

Let's get one on your calendar.

If you want us to bring a digital citizenship assembly to your students, that's exactly the kind of work we love. Reach out to ksb@ksbschoollaw.com for more information, scheduling, and pricing.

The Steamboat Has Sailed: What Wyoming's ESA Ruling Means for Your District

The Steamboat has left the dock, and it’s sailing straight for your front office.  On May 14, the Wyoming Supreme Court unanimously lifted the injunction that had frozen the Steamboat Legacy Scholarship Act, Wyoming’s school voucher program, for nearly a year (Degenfelder v. WEA, 2026 WY 54).  Applications reopened this month.  In May of 2025, when the Act first became effective, roughly 4,000 families signed up for the program, which provides $7,000 per student for an education savings account to families who withdraw their students from public school.  Income-qualified families — at or below 250% of the federal poverty level, roughly $80,000 for a family of four — can also draw ESA funds for pre-K costs, so if your district runs a pre-K program, this affects you too.

 Here’s the catch: the Court didn’t rule the Act constitutional — it just said that the program could be active while the rest of the case is litigated.  The real fight over whether the Act violates the Wyoming Constitution is still playing out in Laramie County District Court, where intervenors filed a motion for judgment on the pleadings on June 23.  But the justices seemed to telegraph that the court will ultimately rule that the Act does not violate Wyoming’s state constitution. 

Translation: this case could wrap up fast, or drag on through a lengthy appeal.

Either way, the money is moving now, and the fallout for enrollment, staffing, and program planning lands this fall, well before anyone gets a final answer on the constitutional question.

Five things to do now

1. Track withdrawals in real time.  Parents have 15 days after the state approves their ESA contract to notify your district in writing.  Make sure front-office and enrollment staff know a formal withdrawal letter is coming — WDE guidance treats the family’s acceptance email from the Wyoming ESA program as sufficient notice.

2. Decide now whether you’ll sell services to ESA families.  Districts may sell individual classes, activities, and programs to ESA students, but only under a formal parent contract, and you can’t count these students for ADM funding, award credit, or put anything on a transcript.  ESA funds cover far more than tuition; they cover tutoring, AP exam fees, uniforms, even homeschool internet costs.  Expect requests that go beyond a basic class list. If you’re considering it, loop in your school district’s legal counsel before you draft or sign anything.

3. Brief your special education team today.  There are two critical issues your special ed team needs to know about ESA enrollment:

   For students who are already identified as special ed students, your team will have to issue prior written notice confirming their withdrawal from school. You will also need to consider what equitable services you will owe these students when they are not enrolled. 

   For students who are not identified as special ed, you will still owe child find obligations.  It is very likely that your district will receive evaluation requests from families who have no intention of ever enrolling.

4. Standardize your records-request process.  FERPA lets you transfer a complete record to a qualified school that enrolls a former student.  Build one clean, repeatable process now, before the requests start piling up.

5. Budget for both outcomes.  The district court could still strike the Act down, and the WDE has signaled it won’t claw back funds already properly disbursed.  The safest thing to do is to run your enrollment and revenue projections twice, once assuming the program survives, once assuming it doesn’t.

Questions? Reach out to us at ksb@ksbschoollaw.com.

THANK YOU! That’s the most important part.

[From Coady Pruett, to KSB's awesome clients and the education community]

I write with tremendous gratitude to share with you that on September 18, my tenure as a KSB School Law attorney will come to an end.  I have accepted another professional opportunity outside of the school law context.  I am very enthusiastic about this new opportunity and looking forward to contributing and adding value to another business.  I will have more to share about my new role in the future via a separate channel.

If I have been your so-called “go to guy,” never fear!  The KSB team has a plan to cover everything.  I have already reached out to the clients with whom I am working on active litigation matters.  Also, if I am working on a specific matter for you, I will either finish it before I wrap up my time at KSB or we will reach out to you directly to let you know who is taking the baton and running with it.  All of us are committed to ensuring as smooth a transition as possible so that you, our clients, remain well served and well advised.

What I want to emphasize here is how grateful I am for my time at KSB School Law and for the opportunity that so many people provided to enable me to serve and represent public school districts.  To the school boards and school administrators, thank you for the trust and confidence that you placed in me by allowing me to provide you counsel, advice, and the opportunity to advocate for you.  To my KSB colleagues, thank you for your comradery, your support, your humor, your intellect, your willingness to grow together, and for putting me in a position to be successful.  KSB School Law has been and remains a mission-driven organization, striving to ultimately help children by empowering school leaders to make the best decisions possible, with limited resources, in imperfect circumstances.  I appreciate having had the chance during the last eight years to contribute toward that cause.

So, I will end with where I started—with gratitude and appreciation for my experience with school leaders and my KSB colleagues.  Until I see you next, be well!  —Coady

Building Your 26-27 In-Service Schedule: An Odyssey Worth Taking

This summer, while half the country is sitting in an IMAX theater watching Matt Damon lash himself to a mast and outwit a cyclops in Christopher Nolan's The Odyssey, you're back at your desk figuring out how to train and prepare (and maybe even entertain) your staff for the year ahead. The temptation is to do what schools have always done: squeeze an entire year's worth of professional development into two or three days in August. 

The problem is that educators have developed a pretty cynical view of both in-person and on-demand training. Too often, "online professional development" means the same generic compliance videos from an insurance carrier, assigned every August, followed by a quiz that half the staff can find on Quizlet before the video even finishes playing. In-person training means administrators squeeze in one more PowerPoint on one more compliance topic and hope everyone stays awake.

Neither of these is really high quality professional learning. It's checking a box.

Instead of treating August as the one opportunity to train your staff, imagine using those precious in-service days for the things that only happen well in person—building culture, discussing difficult issues, collaborating with colleagues, and asking questions. Then, throughout the school year, deliver short, engaging training modules exactly when people need them. Suddenly your August schedule isn't carrying the weight of an entire year's worth of compliance and legal training.

A well-designed in-service isn't about how much information you can cram into a few days. It's about launching a year-long learning strategy. And that strategy may be one of the least expensive, most effective investments you can make in keeping your district out of a courtroom.

The Cautionary Tale: What Happens When You Leave the Room

In Jimenez v. Roseville City School District, a teacher let a group of middle schoolers use his classroom before school to practice break dancing for a talent show. Reasonable enough. Who doesn’t break dance? The trouble started with what he didn't do. He never told his principal or vice principal he'd opened the room. He had no real training in the activity he was supervising. He regularly stepped out to make copies, use the restroom, or take a call, leaving the students on their own because, in his words, it "didn't seem necessary" to do otherwise. While he was out of the room, a 14-year-old was seriously injured. Here, the Court of Appeals ruled that a jury could find the district increased the risk of injury by failing to communicate and train its teachers on staff supervision, protocol, and classroom use. The Court reasoned the teacher's assumption that he didn't need to notify administration or supervise the students at all times, "arguably reflect[ed] a failure of proper training of teachers by the school authorities."

Why This Voyage Matters

The lesson of Jimenez is simple: districts that train their staff stand on far firmer legal ground than those that don't. Even if schools aren’t responsible for guaranteeing perfection--some bad things may still happen--the fact of training helps demonstrate something was a true accident rather than a failure on the school’s part. The good news is that this is the easy part to fix, and we can help. KSB offers on-demand, prerecorded training modules on dozens of topics (including a 35 minute 26-27 back-to-school inservice available starting this Friday), ready whenever your schedule is. Prefer something live? A KSB attorney will happily journey (a la the Odyssey) to your building for an in-person in-service or join by Zoom. You can see the full suite of training options here. Pick the training your staff needs most and get it on the calendar, or email us at ksb@ksbschoollaw.com to check pricing and book a KSB attorney.

KSB's 2026-27 Rookie and Refresher Series – Now Open for Registration!

Summer is winding down and the school supply displays are already looking picked-over.  It must be Administrators' Days week!  Tuesday will be a long day of…networking…or travel, and Wednesday and Thursday will be a blur of learning and more networking.

What’s crazy about this year is by the time you return from Admin Days and get your bearings straight, next Monday will be August 3. 

That means it's time to open registration for KSB's 2026-27 Rookie and Refresher Series — one of our most popular offerings, back again with three live strands built around what's actually happening in your building each month. Whether you're brand new to the job or just want a monthly gut-check on the legal issues heading your way, these sessions are short, practical, and built to be used in real time.

What's Being Offered This Year

We're running three strands for 2026-27:

Superintendents and Business Managers – Monthly sessions running from hiring and negotiations to contracts, FMLA/ADA, public records, and the FLSA quirks that never seem to go away.

Principals – A year-long walk through the calendar, from initial must-dos through evaluations, discipline, enrollment, and personnel decisions with hard deadlines attached.

Special Education Leaders – This year's series follows three contentious meetings — a chronically absent student's annual review, a disputed eligibility determination, and a manifestation determination review — each broken into before, during, and after.

Each strand runs monthly from September through June, live for 40-50 minutes, with registration covering the live webinar (or access via a recording on our portal) plus slides and materials.

Click below for full session descriptions, dates, and topics for each series:

• Superintendents and Business Managers

• Principals

• Special Educators

Ready to Register?

Click here to register for the strand (or strands) that fit your role.  Registration is per school (or individual ESU), not per registrant, so one sign-up covers your whole team.   All webinar fees will appear on your district's or ESU's regular monthly bill.

Questions? Reach out to us at ksb@ksbschoollaw.com.

Stay tuned for information on our Quarterly Webinar Series — details coming soon.

FERPA, the IDEA, and Truancy: A Win for Wyoming School Districts

Good legal news for school districts doesn't come around every day — so when it does, it's worth celebrating.  A recent Wyoming district court decision hands districts two wins at once: (1) FERPA and the IDEA don't stand in the way of the state's attendance laws, and (2) districts unhappy with a special education state complaint decision have a real path to appeal it.

Here's how we got there.  The Wyoming Department of Education found a district in violation of the IDEA for sharing education records — including special education records — with the local prosecuting attorney before that attorney filed a truancy petition.  Instead of accepting the finding, the district pushed back and sought judicial review.  The district won.

A Quick Refresher on FERPA and the IDEA

FERPA's default rule is simple: no disclosing education records without prior written parental consent, unless an exception applies.  The IDEA layers on extra confidentiality protections for special education information, but it doesn't invent its own separate rulebook, it borrows FERPA's.  So wherever FERPA permits a disclosure, the IDEA rides along and permits it too. The juvenile justice exception turns out to fit attendance enforcement almost perfectly.

Wyoming's Truancy Rules in Brief

Wyoming law requires school attendance and puts designated attendance officers in charge of enforcing it.  When an officer determines a child is habitually truant or willfully absent, the officer has to notify the board of trustees and the district attorney (or, where there's no DA, the county attorney).  That attorney can then start proceedings "in the interest of the child" under the Child Protection Act or the Children In Need of Supervision Act. Wyoming's framework treats truancy squarely as a juvenile justice issue, including willful absenteeism.

What the Court Found

On appeal, the court held that FERPA's juvenile justice exception lets districts disclose education records to the district or county attorney handling a truancy referral.  The exception is about who can receive the records, not which records qualify — so it doesn't carve out special education records, and it doesn't limit districts to a one-line notice.

The Catch: This Isn’t A Blanket Pass

Before you get too excited: the court didn't say share everything with anyone.  A habitual-truancy finding doesn't turn a student's entire file into fair game. The exception is purpose-limited.  A district may share records because they relate to the truancy referral and the juvenile system's ability to help the student, not just because the records happen to exist.

A district that treats a truancy declaration as open-ended authorization has stepped outside what this decision actually supports.  The safest way forward is to document the purpose behind every production.  For example, any record you share can be labeled: "Truancy/Juvenile Justice System Matter."  That paper trail is what keeps a disclosure defensible.

The Bigger “Bonus” Win: Districts Can Appeal State Complaint Decisions

This case only reached a courtroom because the school district involved refused to treat WDE's decision as final.  The Department found the district out of compliance and ordered corrective action; the district filed for judicial review instead.  That allowed the court a forum to reverse WDE's decision as contrary to law and arbitrary and capricious.

Wyoming educators have long assumed a state complaint decision is the end of the road.  This case established that it isn't.  If a school district believes WDE has made a legal mistake, it is clear now that the district can seek judicial review.   

The Bottom Line

• Share Truancy Records with Confidence. Districts can give truancy-related education records — special ed records included — to the prosecuting attorney on a referral, as long as the disclosure serves the juvenile justice purpose and the district documents that purpose.

• Losing doesn't mean losing. An unfavorable state complaint decision is a starting point, not the final. When the law and facts are on the district's side, the courthouse door is still open.

Questions? Reach out any time at ksb@ksbschoollaw.com

Cooperative Purchasing and the AG's Opinion: You Can't Always Get What You Want

The Rolling Stones warned us decades ago that You Can't Always Get What You Want. (For the hideously uninformed the Gen Z and millennials crowd, the Rolling Stones is an iconic band made up of Keith Richards and Mick Jagger, with great music such as I Can’t Get No) Satisfaction, Jumpin’ Jack Flash and a new album that Karen Haase thinks is really good)   In Official Opinion No. 26-03, AG Marty Jackley did his best Jagger impersonation, telling school districts that they can’t always get what they want - if what they want is to use a cooperative purchasing agreement as a shortcut around procurement laws related to public improvements. 

AG Jackley’s opinion reported that some school districts in South Dakota have entered into contracts with out-of-state sports construction firms to build facilities on public school properties without soliciting competitive bids and proposals and following the other steps South Dakota state law requires for public construction.  The cooperative purchasing companies hold themselves out as complying because South Dakota permits school districts to enter into agreements to participate in cooperative purchasing contracts.  However, not all spending and procurement is governed the same way. Cooperative purchasing under SDCL 5-18A-37 lets a purchasing agency join with other agencies for "the purchase of supplies or contractual services." The fight is whether that same statute stretches to cover the construction of a public improvement — a new building, a gym, an athletic complex. Under South Dakota law, a “public improvement” is “the process of building, altering, repairing, improving, or demolishing any public infrastructure facility, including any utility infrastructure, structure, building, or other improvements of any kind to real property, the cost of which is payable from taxes or other funds under the control of the purchasing agency, and includes any local improvement for which a special assessment is to be levied.” (Super broad!) 

So what does a district do instead? Any public improvement of $100,000 or more must be advertised and bid unless a specific statute authorizes another route (SDCL 5-18A-14), with competitive sealed bidding as the default (SDCL 5-18A-4, -5). Districts may also determine that competitive sealed bidding is not practicable or advantageous for a project; it can procure by competitive sealed proposals instead (SDCL 5-18A-6, -7), awarding not to the lowest price but to the responsible offeror whose proposal is most advantageous on the evaluation factors the district states up front in its RFP. Meaning the school board can develop a rubric that weighs qualifications, experience, schedule, and price together. Schools may also have to satisfy the conditions of design-build (SDCL 5-18B-20) and construction-manager-at-risk (SDCL 5-18B-39 to -44) when pursuing these delivery methods.  

Ok, you may be wondering “what should I do now?” 

1. Don't panic about finished projects. If the building's up, a court won’t make you tear it down. (But a court  may halt something that is half-built!) 

2. Take a hard look at anything in progress. If you have an active construction project running through a cooperative, call your school attorney now.

3. Do your own homework. If you're leaning toward the design-build path, your district, not the cooperative's website, has to establish and publish the required procedures and document why design-build serves the public interest. Also, these companies may not be as familiar with South Dakota’s requirements, so it’s crucial that you look into the processes yourself with your school attorney. 

4. Mind the preferences. Resident-bidder and South Dakota supplier preferences don't disappear just because you used a cooperative. The cooperative's process may not build those in automatically.

5. Call your lawyer before you sign. Every one of these situations turns on the specific facts and the specific contract. LONG before you’re discussing contract terms for ANY project, make sure you’ve discussed it with your lawyer. The stakes are too high! 

The Rolling Stones classic sums this whole topic up best: “You can’t always get what you want.  But if you try sometimes, you just might find, you get what you need.”  And if what you need is to complete a construction project that is lawful, KSB can help. 

Let's Talk Construction — August 7

Good news: you don't have to sort this out alone. We're presenting on construction-related legal issues at the ASBSD/SASD joint conference on August 7. We'll be digging into the broader landscape schools have to navigate on any building project, the bidding and procurement rules, required hearings and notices, the finance side, and the traps that turn a straightforward project into a headache. If your district is building, planning to build, or just trying not to end up as the subject of the next AG opinion, this is the session for you.

Questions? Reach out at ksb@ksbschoollaw.com or 402-804-8000 — and we'll see you on August 7.

The Feds Just Made Title IX Training a Bigger Deal. Ours Is Now Live On-Demand.

On July 10, the Department of Education launched a new national initiative aimed at protecting K-12 students from sexual misconduct by adults in schools, backed by a Dear Colleague Letter reminding every district of its obligations under Title IX related to staff and professional boundaries.  It doesn't create new law.  It does signal that the feds are watching how districts actually execute the process they already have — and that makes this year's Title IX training more than a box to check.

Our on-demand Title IX training for 2026-27 went live July 15.  Here's why each piece of it matters more than you might think.

New administrators (required): "I already did Title IX training at my last district" doesn't cover you here.  The regulations require training on the scope of your district's education program and your district's policy — not a generic overview of Title IX.  A new administrator - even if you’re coming from a district that has an identical policy on paper - has to be trained again on school-specific response processes, coordinators, and the like.  Different job title, same rule: you need current training on your district's Title IX policy, in both the "skinny" and "full" versions, before you're the one fielding a report.  Run time for “full” districts is a little over three hours; run time for “skinny” districts is about 40 minutes. 

Returning administrators in Districts with the full Title IX Policy: (required):  First the bad news: The 2020 regulations require that all members of the Title IX team be trained on “current law and regulation.”  The FBI's crime reporting definitions that your Title IX policy incorporates were updated, which will shift how conduct gets classified under your policy.   And you also need to review the substance of the July 10 Dear Colleague letter.  Now the good news: our training for returning administrators in a full policy district only runs for around 30 minutes.  

Returning administrators in Districts with the “skinny” Title IX Policy: (recommended, not required — but read this before you skip it): Even if your  Board elected to adopt KSB’s "skinny" version of a Title IX policy, the policy doesn’t train itself and it is not self-executing.  The Department's July 10 Dear Colleague Letter is a reminder that having a compliant policy on paper and having a team that can run it correctly under pressure are two different things. 

All staff (required for new staff, recommended for everyone, and we mean everyone): Here's the piece administrators sometimes underweigh: a report of sexual harassment to any employee of a K-12 school creates actual knowledge for the district.  That means a volunteer coach, a cafeteria worker, a paraprofessional, or the president of your school board can each individually trigger your district's legal duty to respond, whether or not they know what to do with what they just heard.  Failing to report Title IX-covered misconduct is one of the biggest legal exposures a school can carry, and that exposure doesn't discriminate by job title or tenure.  Every person on your payroll — and some who aren't — can put your district on the clock.

Prefer a live person in the room? We'll run all of this at your back-to-school inservice.  Dates are booking fast — email Shari at shari@ksbschoollaw.com to grab one before they're gone.

CLICK HERE TO REGISTER FOR ON-DEMAND TRAINING