Nebraska’s school administrators were decidedly NOT thankful to open their emails before Thanksgiving. Norby and Welding, the law firm that represents the Nebraska State Education Association, sent an email to every school district and ESU in the state on Wednesday, November 25th. This communication provides education entities with notice that the NSEA has filed a “Rule 62 Petition” with the Nebraska Department of Education and requested a hearing on the petition. Remember that several days ago, the NSEA announced in a press conference and social media campaign that it intended to do this, so it shouldn’t be a surprise.
However, here’s the important part: you do NOT need to cancel your plans to gorge yourself on stuffing and pumpkin pie (and probably a Husker loss on Friday). This communication, and NSEA’s petition, do not require any immediate response from Nebraska’s education entities, and most of you may not respond at all.
What’s this Rule 62 business again? Under Rule 62 of the Nebraska Department of Education, any person may petition the State Board of Education as to the applicability of a “statute, rule, regulation or order enforced by the Board.” You may recall that this is the mechanism that the ESUCC used to ask the State Board to waive various rules and requirements last spring due to schools being closed for in-person instruction. The NSEA attorneys are seeking to use this same process to ask the State Board of Education to make new rules for schools to follow while the COVID pandemic remains an active public health concern.
Why did you get this? Rule 62 requires anyone who files a petition with the State Board to also serve a copy of the petition on “all necessary parties, including all persons, political subdivisions, corporations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the Board.” This is why your ESU sent you a copy of ESUCC’s Rule 62 Petition last May. The NSEA’s attorneys were entirely correct and legally required to send all affected education entities a copy of their petition. And you will be entirely correct to simply ignore it for now, because there is no obligation to respond.
Our Initial Impressions. The KSB attorneys are still analyzing the petition, but our initial reaction is that we do not believe that the State Board has the legal authority to do the things the NSEA is asking it to do. This is because the petition does not seek clarification as to the applicability of existing obligations, but instead requests that the State Board essentially implement new requirements. Making new rules compared to interpreting existing rules generally would require NDE to go through a rulemaking process. That is not the function of a Rule 62 petition.
We will continue to work with members of the education community to support you during this pandemic, and we may ultimately submit some sort of response to the State Board regarding the NSEA’s petition. But it is not necessary to have this petition spoil your Thanksgiving. And for that, we can all be grateful.
If you have questions, please let us know, but for now, have a great Thanksgiving and holiday weekend!