You might not know it by looking outside, but Mariah Carey is back on the radio and that means winter break is right around the corner. As the semester draws to a close we wanted to help you prepare for the holidays with some timely reminders and updates.
Bah Humbug
As you plan your Christmas, er, I mean Winter Holiday Concerts and Programs, it's important to ensure that your activity doesn’t impermissibly endorse religion, coerce the audience and students to conform to a religion, or serve an unlawful religious purpose.
In Freedom from Religion Found., Inc. v. Concord Cmty. Schools, the Seventh Circuit closely examined a school district’s “Christmas Spectacular” programs. The school’s original Christmas program, which it staged for decades prior, focused on the story and birth of Jesus “to the point that it was hard to distinguish it from many Christmas Eve church services.” This program was found to be in violation of the Establishment Clause of the First Amendment, and the school was prohibited from performing it. According to the court, “a religious purpose cannot be the primary motivation” for a public school program or activity.
In response, the school made several changes to the program. “Ani Ma’amin” and “Harambee” were added to recognize and celebrate Hanukkah and Kwanzaa. The nativity scene was shortened from twenty minutes to two minutes. Students were no longer asked and/or required to play characters in the nativity, and a reading from the New Testament was taken out. With these changes, the Seventh Circuit determined that the program no longer violated the Establishment Clause, because it was not “ratifying a religious message.”
A Lump of Coal for Schools with Head Start Programs
On November 30, the U.S. Department of Health and Human Services (HHS) issued a requirement requiring all Head Start programs to mandate universal masking for everyone over the age of 2 within their programs. This requirement became effective immediately, which means all schools with Head Start programs must mandate masking for students and staff in Head Start.
Head Start employees must be vaccinated by January 31, 2022. This means staff, contractors, and volunteers who are assigned to work in the Head Start program must have their second dose in a two-dose series or first in a single-dose series by January 31, 2022. Head Start programs may allow exemptions to the vaccination requirement for those who cannot be vaccinated due to medical conditions or religious beliefs, practices, or observances. For those granted a vaccine exemption, there will be a weekly testing requirement. Without an approved vaccine exemption, there is no option for testing in lieu of receiving the vaccine. You can read the full announcement in the Federal Register here.
Employing Ebenezer
The stress of the holiday season takes its toll on the best of us, and we recognize that this stressful season caps off a difficult year for school employees. Add in a little extra free time, some overexposure to (totally normal) family, and New Year’s Eve festivities, and the result can be social media posts or other forms of speech that cross the line of protected First Amendment activity. As a result, it's important that school employees go into their break with a reminder of when speech is, and when speech isn’t, protected.
Courts apply a two-part test to determine if a public employee’s speech is protected by the First Amendment. The first step really asks 2 questions: did the employee speak (a) as a private citizen (b) on a matter of public concern. If the answer is “no” (to either inquiry) the First Amendment does not protect the employee’s speech. If the answer is “yes” (to both inquiries), the First Amendment may protect the employee’s speech.
To determine whether an employee is speaking as a private citizen, the fact that an employee is on break is not necessarily dispositive. Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, less likely while on break). However, posts from an account that is connected to the staff member’s duties or that are considered District property are less likely to be considered to have been made by a private citizen.
To determine whether an employee is speaking about a matter of public concern, courts look at the “content, form, and context” of the statement, along with the employee’s motive in making the statement. Connick v. Myers, 461 U.S. 138 (1983). Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.
If an employee is speaking as a private citizen regarding a matter of public concern, we turn to the second part of the test. A public employer can only take action against the individual if it has an adequate justification for treating the employee differently from any other member of the general public. Courts will balance the school’s interest in maintaining order and efficient operations against the liberty interests of the employee to determine if an adequate justification exists.
Finally, it is important to remember that the First Amendment protects speech and expressive conduct that is considered speech. It does not protect non-expressive conduct, such as driving under the influence or unlawful interactions with minors.
Holiday Cards
PPACA/Obamacare reporting is like holiday cards; you hate it but know you have to do it every year. With the ides of December upon us, it’s time again to think about your 2021 PPACA reporting obligations (1094 and 1095 forms) for “applicable large employers” (ALE’s). In case you’ve forgotten, an ALE is any employer that employs 50 or more FT + FTE employees, on average, per month of the preceding (2020) calendar year. If you’re not sure if you’re an ALE, ask your business manager or contact your school attorney.
For any school ALE, you are required to submit one form to each of your full-time employees (typically the 1095-C) and one transmittal form plus a copy of each employee’s form to the IRS (typically the 1094-C). This annual reporting is important. It is required by the law, but it is also used to judge your compliance with PPACA as a school--meaning possible tax penalties if you’re out of compliance. Whether you’re experienced in PPACA reporting or new to your position, you can sign up for KSB’s annual PPACA Reporting Webinar here. The webinar will stream live on Wednesday, December 15 from 9-12 central, and a recording will be available on demand after.
Help Wanted
KSB is now hiring for the position of coal miner. Qualified candidates will have 50+ years of experience and will be capable of filling Steve’s stocking by Christmas Eve. Please submit applications to shariclaus@ksbnorthpole.com. KSB North Pole is an Equal Inopportunity Employer.
Conclusion
We know what a busy time of year this is for schools, and how taxing the semester was with staff shortages and an overly active contingent of CAVE (citizens against virtually everything) members. If you have any questions about, or need any assistance in, closing out the semester you should call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com.