TSBA 2013 Summer Law Institute Gatlinburg

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Summer Law Institute
Gatlinburg, Tennessee

Renea Jones-Rogers, TSBA
President and Unicoi County
Board Chairman

MEETING OVERVIEW
Randall Bennett, TSBA Deputy Executive Director and
General Counsel

WHAT IS A QR CODE?
(Quick Response Code)
Small square barcodes that contain data that can be
read/accessed by using a QR Code reader/scanner.
Must have a smartphone or other electronic device
connected to the internet/3G network.

HOW DO I USE A QR CODE?
You will need the following to scan a barcode:
1. A mobile device with a camera - ex: smartphone, iPad, Android
2. A QR Code Reader app. This app can be downloaded from your
platform app store.
- Google Play (Android users) search “QR Droid”
- App Store (Apple users) search “QRReader”
3. A QR Code to scan.

WHAT IS A QR CODE?
Scan this code (located in
packet) to access the digital
files for the Summer Law
Institute.

SPECIAL GUESTS

PREMIER BUSINESS AFFILIATE
GCA EDUCATION
SERVICES, INC.
Craig Colquitt & Kip Puryear

SCHOOLCAST
Frank Sheddan

PROFESSIONAL EDUCATIONAL
SERVICES GROUP (PESG)
Kim Woodson & Kristi Fliestra

LEE HARRELL
TSBA Director of Government Relations, Labor Relations and Policy

2013 Legislative
Report
July 12, 2013
TSBA Summer Law Institute
Gatlinburg, Tennessee

Unexpected Ending…
Vouchers
Statewide Authorizer of
Charter Schools

Guns in Schools / Teachers w/ Guns
HB 6 by Watson / SB 570 by Niceley
• PERMISSIVE
• Person must be employee of the school or an employee
assigned by local law enforcement through an MOU
Will teachers be allowed to carry?
Maybe.

Requirements:
• Possess a carry permit
• Have written authorization of director and principal
• Have completed full law enforcement training with an
additional 40 hours of school policing (approved by LEA)
• Costs of training, firearm and ammunition are the
responsibility of the person seeking to carry
Public Chapter 358

Requirements:
• Within 10 days of a superintendent authorizing a person
to carry, he/she shall notify the chief of the local law
enforcement agency.
• The authorizing letter, the notification to law
enforcement, and all related materials are confidential
and not subject to open records requests.
Public Chapter 358

• 20 years of debate
• If a school is a member of an organization that regulates
athletic programs, then the school must comply with the
regulations regarding homeschoolers.
• This law only provides the opportunity to try out – it
does not guarantee a spot on a team.
Homeschoolers in Athletics
SB 249 by Campfield – HB 222 by Kane

• Permissive – “at the discretion of the LEA”
• Teachers with grades of “above expectations” or
“significantly above expectations” with individual
TVAAS data may request that their evaluations be based
100% on this data.
• If implemented, this option must be available for all
teachers.
Teacher Evaluations
SB 156 by Norris – HB 150 by Forgety

• Currently, evaluations are 50% observation and 50% student
achievement for all teachers.
• For teachers without individual data, the breakdown of the
evaluations changes to 60% observation and 40% student
achievement (25% TVAAS and 15% other data).
• This bill also deletes this provision of the law: Records from
any student who is eligible for special education services
under federal law will not be used as part of the value added
assessment.
Teacher Evaluations
Public Chapter 105

• Currently, whatever a local funding body appropriates for
a school system this year, it will be obligated to provide
in subsequent years - excluding bonds. (M of E)
• This law creates an exception to this ongoing obligation
to allow for one-time dollars for non-recurring expenses.
One-Time Appropriations
SB 612 by Yager – HB 1156 by D. White

• An LEA and local funding body must acknowledge in
writing that the funds are for one-time expenditures.
• The TDOE will ensure the non-recurring nature of the funds
during its review of each LEA’s budget proposal.
• These one-time dollars are NOT subject to the requirements
of apportionment to other districts within a county.
One-Time Appropriations
Public Chapter 305

• Since 2007, contractors have had to request background
checks for all of his/her employees who would be around
students or on school grounds during the school day.
• However, as a private citizen, these background checks
would simply produce “green light” or “red light” letters
indicating if an employee was allowed.
• For some reason, the only disqualifiers were sexual or
violent sexual offenses.
Background Checks for Contractors
SB 16 by Gresham – HB 237 by H. Brooks

• This new law adds numerous disqualifying offenses to
mirror the offenses whereby a teacher automatically loses
his/her license.
• 39-17-417 - manufacturing, delivering, or selling drugs or
possessing drugs with the intent to do so.
• 40-35-501(i)(2) –murder, kidnapping, robbery, arson, and
child abuse.
Background Checks for Contractors
Public Chapter 177

• As introduced, it could have been very problematic.
• It prohibited people from running for the school board if
they had a relative who was an employee of the LEA.
• It would have required the board to vote prior to the
promotion or hiring of anyone related to the board or the
director of schools.
Nepotism
SB 663 by Gresham – HB 449 by Dunn

• As enacted, it mirrors most LEAs’ policies on nepotism.
• Prior to the hiring of a person who is related to the director, a
board member, or a county/city official, the director shall
notify the board with assurance of the person’s qualifications.
• Prior to a board member voting on an item which may impact
an employee who is a relative, the board member shall
declare such relationship and state that his/her vote is in the
best interest of the school system.
Nepotism
Public Chapter 301

• Governor’s proposal
• Caps initial enrollment of all virtual schools to 1,500 students
• If a virtual school receives a grade of “at expectations” with
student performance, the cap is removed.
• However, existing virtual schools are capped at their
enrollment numbers as of the date of enactment (May 14).
“Caps” on Virtual Schools’ Enrollments
SB 157 by Norris – HB 151 by McCormick

• If a virtual school becomes a priority school or if it has grades
of “significantly below expectations” with student
performance for three consecutive years, the commissioner
may reinstate the caps or direct the LEA to close the school.
“Caps” on Virtual Schools’ Enrollments
Public Chapter 404

• This law will provide a great deal of flexibility to high
performing school districts.
• High performing districts may spend their reserves without
the approval of the local legislative body, develop a new
teacher evaluation instrument, add days to the instructional
calendar, and request waivers from statutes that inhibit or
hinder the district’s ability to meet its goals or comply with
its mission statement. - status is valid for three years.
High Performing School Districts
SB 592 by Johnson – HB 210 by Sargent

• To be a high performing district under this law, an LEA…
1.) Must satisfy a majority of the following criteria:
• graduation rate ≥ 90% ,
• Average ACT score ≥ 21,
• high three year average on TCAP,
• high three year average on TVAAS, or
• meet or exceed achievement and gap closure objectives, AND
2.) Declare itself to be a high performing school district
through an action of the board.
High Performing School Districts
Public Chapter 393

• This law requires LEAs to have a policy whereby parents
may request transfers for students.
• Decisions are still made by districts.
• Parents are responsible for transportation.
• Public Chapter 411.
Open Enrollment Policies
SB 1175 by Kelsey– HB 941 by Dunn

CHUCK CAGLE
Attorney, Lewis, King, Krieg & Waldrop, P.C.

BREAK

SCOTT BENNETT
Attorney, Leitner, Williams, Dooley & Napolitan

D. Scott Bennett
Leitner, Williams, Dooley & Napolitan, PLLC
scott.bennett@leitnerfirm.com
You’ve Been Sued – Now What?
Taking a Businesslike
Approach to Civil
Litigation

Initial Steps
 Don’t panic!
 Read the complaint
– How have you been sued?
 Official capacity? Meaning that you were carrying out the policies
of the Board
 Individual capacity? Meaning that you are yourself liable
 Contact the powers-that-be
– Superintendent
– Board chair
– Board attorney
– Insurance agent, if applicable
 The board’s
 Your own

Don’t Be Stupid
 Don’t call the complainant or the attorney
 Don’t launch your own investigation
 Don’t talk about the suit
– Not with the staff
– Not with your friends
– Not with the press
 Get behind the district and let it coordinate
everything

Early Strategic Considerations
 Save all emails
– Really – save even the ones that seem terribly
damaging
– Alert IT to start looking for related emails and to place
a “litigation hold” on them
– Demand compliance
 What about a press release?
– Note that some local rules of court prohibit
commenting about pending litigation
– Less is more
 Convey an attitude of focused attention on the issue; do
not address the underlying facts
 Expect to be cross-examined on whatever you say

Retaining an Attorney
 Do you need litigation counsel?
– Lean on your Board attorney for advice
– Ask him or her to coordinate the defense and/or retention of
counsel
 If you have insurance coverage,
– Be sure to ask questions regarding the qualifications of any
attorney it might retain
– And insist on early involvement
 Should you retain counsel for individually named
defendants?
– It depends entirely on how and why they have been sued
– Oftentimes the carrier will make this decision

Working the Case
 The level of your involvement will depend entirely upon your
role in the LEA and the nature of the case
– Don’t be disappointed if you are not contacted daily about the case!
– But don’t get frustrated if you are!
 Put together a timeline and summary of relevant facts,
conversations, etc. for the attorney’s use
– And label as “work product – prepared for use of the attorney”
– Update it as thoughts occur to you
– And don’t share it with anyone else!
 Pull together documents
– Amazing how many documents exist outside their logical place!
 Do not divulge any confidential information regarding the
defense outside of the immediate nerve center of the LEA
– It is possible for you to waive privileged and confidential information
that belongs to the Board!

Potential Sources of Liability
 Constitutional violations
 State law tort law
 Employment law

Constitutional Law: General Rules
 The board will be liable where a policy or an
established practice or procedure violates an
individual’s constitutional right under 42 USC 1983
– For example, Bible distribution policies, mandatory drug
tests, etc.
 Individual board members and administrators usually
will have qualified immunity from suit arising out of
policy, practice or procedure so long as
– He or she reasonably believed that the board’s policy did
not violate a clearly established constitutional right
– This rule protects good faith and common sense

Constitutional Law: Personal Liability
 Regardless of policy, practice or procedure, board
members and administrators become personally
liable if…
– They are aware of a violation of a clearly established right
– And are deliberately indifferent to it
 As an aside, participation in the violation only increases the
odds of personal liability
 Ouch! Recovery can include actual damages,
punitive damages if defendants were reckless, and
attorneys’ fees

State Tort Law: General Rules
 Governmental Tort Liability Act immunizes board
members against personal liability (TCA 29-20-
201(b)(2))
– Immunity is lifted where the board member acts willfully,
wantonly or with gross negligence
 Gross negligence: Conscious disregard of a legal duty and its
consequences to others
 Even when immunity is lifted, damages are capped
at $300 K per plaintiff up to $700 K (TCA 29-20-
403(b)(4))
– But the cap is lifted if the board member acts willfully,
maliciously, criminally, or for personal gain
 If such is the case, then punitive damages are a real possibility

Employment: General Rules
 Most employment duties fall to the superintendent
(TCA 49-2-301(b)(1)(EE))
– So long as they don’t get involved in day-to-day
employment issues, there should never be a reason for
board members to be sued
 The board retains some employment duties
– For example, dismissal of teachers and oversight of the
superintendent
– TCA 49-5-512(b) provides that “the director of schools or
other school officials shall not be held liable, personally or
officially, when performing their duties in prosecuting
charges against a teacher or teachers under this part.”
– Good faith performance of duties should be a defense

Employment Discrimination Claims
 Individual board members and administrators are not
“employers” under Title VII or the THRA
 But, individuals can be liable under state law as
“aiders and abettors” of discrimination if they
affirmatively assist in the furtherance of
discrimination (TCA 4-21-301(2))
 And anyone who is aware of an employee’s medical
condition can become liable under the FMLA

Words of Wisdom for Board
Members
 Do nothing as a individual
– Always act with your colleagues at a Board
meeting
– Your most powerful tool is the question “why?”
 When in doubt of what to do, call your Board
attorney and ask for written advice
 If you cannot say something nice about
someone, keep your mouth shut

LUNCH
Mountain View Room (upstairs)

SAMUEL JACKSON
Attorney, Lewis, King, Krieg & Waldrop

Samuel L. Jackson
Lewis, King, Krieg & Waldrop, P.C.
Defining Equal Opportunity in
School-Sponsored Extracurricular
Activities and Athletics.

• A high school student born with only one
hand is a qualified student with a disability
under Section 504. The student would like
to participate on the school’s swim team.
The student has the required swimming
ability and meets the qualifications for
joining the team. She asks the school
district to waive the “two-hand touch”
finish it requires of all swimmers in swim
meets, and to allow her to finish with a
“one-hand touch.”
– Is the school required to waive the
“two-hand touch” finish to allow the
student to participate?
Scenario

Office of Civil Rights Says . . .
• The school district must conduct
an “individualized assessment” to
determine if:
1) The requested modification is
necessary for the student’s
participation; and
2) permitting the modification
would fundamentally alter the
nature of the activity or would give the
student an unfair advantage.

Office of Civil Rights Says . . .
– A one-hand touch does not alter an essential aspect of the activity.
– If a school district was correct in finding that the student would gain an unfair
advantage, then the modification would not be required.
– The school district would, however, be required to determine if other
modifications were available that would allow the student to participate,
such as allowing the student to finish when she touched the wall with
one hand and had the other arm simultaneously stretched forward.

The Dear Colleague Letter:
– On January 25, 2013 The United States Department of
Civil Rights (“OCR”) issued a Dear Colleague Letter (“DCL”)
advising school districts of their “obligations” under
Section 504 regarding the participation of students with disabilities in
“extracurricular athletics.”
– The DCL focuses on three primary areas:
1) Prohibiting exclusion based on assumptions about disability generally, or
specific disabilities in particular.
2) Ensuring that students with disabilities are afforded an equal opportunity
to participate in extracurricular athletics.
3) Creating “separate or different” athletic opportunities where the “interests
and abilities of some students with disabilities cannot be as fully and
effectively met by the school district’s existing extracurricular program.”

What is Section 504 and Who is OCR?
• Section 504 is a federal civil rights law designed to eliminate disability discrimination in
programs and activities that receive federal funds. Since all public school districts receive
federal funds, they are required to comply with this law.
• The Statute:
“No otherwise qualified individual with a disability . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a).
• Section 504’s Implementing Regulations:
– Requires schools to provide a “free appropriate education” (“FAPE”):
• Recipients “shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature
or severity of the person's handicap.”
– Affords disabled students an equal opportunity for participation in extracurricular
activities :
• Recipients “shall provide non-academic and extracurricular services and activities
in such manner as is necessary to afford handicapped students an equal
opportunity for participation in such services and activities.” 34 C.F.R. 104.37
(a)(1).
• OCR:
– The U.S. Department of Education’s enforcement agency for Section 504.
– Promulgates the implementing regulations for Section 504.

Background:
U.S. Government Accountability Office (GAO) Report
• June, 2010 - GAO releases a report entitled Students with Disabilities:
More Information and Guidance Could Improve Opportunities in Physical
Education and Athletics, No. GAO-10-519.
• Report was issued in response to concern raised by national associations
about whether students with disabilities are receiving similar PE and
extracurricular athletics opportunities as those without disabilities.
• Focus of GAO’s Report:
– What is known about the physical education and extracurricular athletic
opportunities that schools provide to students with disabilities, and how do
schools provide these;
– How the Department of Education assists states and schools to provide these
opportunities to students with disabilities.

• National Data:
– 41% of students with disabilities in grades 1-7 participated in school or
community-based extracurricular athletics in 2000.
– 33% of students with disabilities in grades 7-12 participated in school or
community-based extracurricular athletics in 2001.
– Sport participation among these students was consistently higher for
boys than for girls, regardless of age.
“We found no national data that was reliable for our purpose of comparing
the participation of students with disabilities to students without disabilities in
extracurricular athletics.”
Background:

• GAO conducted site visits at four schools in two different districts in five
different states (California, Florida, Maryland, Minnesota, and New Jersey).
• Findings:
– Participation rates for IDEA students were lower than for non-IDEA students,
ranging from 10 to 56 percentage points lower.
– Student participation on sports teams varies by disability.
– Students with hearing impairments, speech impairments,
learning disabilities, or other health impairments reported participating
in sports teams at a higher rate compared to orthopedic impairments, mental
retardation, visual impairments, autism, or multiple disabilities.
Background:

• Conclusions:
– There is a lack of information regarding how to provide extracurricular
opportunities to disabled students.
– Budget constraints may inhibit schools from providing more athletic
opportunities to students with disabilities.
– Neither the DOE nor OCR have widely disseminated any detailed guidance
or information on school’s responsibilities to provide opportunities in PE or
extracurricular athletics for students with disabilities under Section 504.
• Why? Of the 12,543 complaints regarding elementary and secondary school
students made to OCR between 2005 and 2009, only 108 complaints pertained to
discrimination regarding student participation in PE or extracurricular athletics.
(This equates to less than 1 percent of all OCR complaints).
– Recommended that DOE clarify and communicate school’s responsibilities
under Section 504 regarding the provision of extracurricular athletics.
Background:

1. Do Not Act on Generalizations or Stereotypes
• A school district may not operate its extracurricular
activities on the basis of generalizations, assumptions,
prejudices, or stereotypes about disabilities in general,
or specific disabilities.
• A school district may not use generalizations to
determine what students with a type of disability are
able to do; one student with a certain type of
disability may be able to participate in an activity but
another student with the same disability may not.

• Example:
Student with learning disability under Section 504 participated in
school’s lacrosse club during middle school. As student enters
ninth grade, she tries out and is selected as a member of the high
school’s lacrosse team. The coach is aware of the student’s
learning disability and believes that all students with this disability
would be unable to play successfully under the time constraints
and pressures of an actual game. Based on this assumption, the
coach does not play the student during games.
• OCR would find that the coach’s decision violates Section 504.
While the student does not have a right to participate in games, the
decision on whether to play the student must be based on the same
criteria the coach uses for all other players (such as performance
during practice).
1. Do Not Act on Generalizations or Stereotypes

2. Ensure Equal Opportunity for Participation
• A school district must offer extracurricular activities in a manner that allows
qualified students with disabilities an “equal opportunity to participate.”
• To do so, a school district must make reasonable modifications and provide
necessary aids and services for ensuring an equal opportunity to participate,
unless it can show that doing so would fundamentally alter the program.
• A modification might constitute a fundamental alteration if it alters an
essential aspect of the sport or activity in a way that makes it unacceptable
even if it affected all participants equally, i.e. adding an extra base in baseball.
• Even so, the school district would be required to determine if other
modifications are available that would allow the student to participate.

• Example: An elementary school student with diabetes is not eligible
for services under the IDEA, but is a qualified student with a
disability under Section 504. During the school day, the student
receives services under Section 504 that include assistance with
glucose testing and insulin administration from trained school
personnel.
During the school year, the student wants to join the school-
sponsored gymnastics club. The club has its meetings after school.
The only eligibility requirement is that all members must attend
that school. When the parent asks the school to provide the glucose
testing and insulin administration that the student needs to
participate in the club, school personnel agree that it is necessary
but inform the parent that they are not required to provide the
student with such assistance because gymnastics club is an
extracurricular activity.
Is the school required to provide these services
after-school to allow the student to participate in
gymnastics club???

Example:
• According to OCR, the school is required to provide these services
and denying them would be a violation of Section 504.
• The school district must provide this assistance after school under
Section 504 to enable the student to participate in the gymnastics
club, unless doing so would be a fundamental alteration of the
district’s education program.
• The school district has a legal obligation under IDEA to provide
aids or services in its education program to enable any IDEA-
eligible student to participate in extracurricular activities, so,
providing these aids and services after school to student with a
disability not eligible under the IDEA would rarely, if ever, be a
fundamental alteration of its education program.

• Providing unnecessarily separate or different services is
discriminatory. Thus, OCR encourages school districts to
coordinate with their community and athletic associations to
develop opportunities for students with disabilities to participate
in all extracurricular athletic activities.
• If students with disabilities cannot participate in the school
district’s existing extracurricular activities, the school district
should create additional opportunities for them. These students
should still have an equal opportunity to receive the benefit of
extracurricular activities.
• In those circumstances, a school district should offer students with
disabilities opportunities for athletic activities that are separate or
different from those offered to students without disabilities. These
should be supported equally with the district's other athletic
activities.
3. Offering Separate or Different Athletic
Opportunities

• School districts must be flexible when developing programs
that meet the interests of students with disabilities. More
school districts are creating disability-specific teams for sports
such as wheelchair basketball.
• When the number of students with disabilities is insufficient
to field a team at an individual school, school districts can:
(1) Develop district-wide or regional teams instead of
school-based teams;
(2) Mix male and female students with disabilities on
teams together; or
(3) Offer teams where students with disabilities
participate with students without disabilities.
3. Offering Separate or Different Athletic
Opportunities

National School Boards Association’s General
Counsel Responds to DCL:
May 21, 2013
• NSBA’s main concern is that without clarification, OCR’s
broad reading of the law and blending of OCR enforcement
standards for Section 504 matters, as stated in the DCL,
will:
– create uncertainty in the courts about applicable standards;
– create confusion among school attorneys, educators, school
personnel, and parents about methods of implementation;
– invite misguided litigation that will detract from school resources;
and
– create adversarial environments that distract schools from their
educational purpose.

NSBA Response:
Expansion of OCR’s View of Its Authority Under 504
• Individual Assessments:
– Current OCR regulations focus on individual assessments of a student’s
educational abilities and possible need for modifications based on educational
data, testing, academic performance, and input from the student’s educators.
– Per the DCL, it seems OCR is suggesting, even requiring, that an individual
assessment of a disabled student’s educational abilities should be accompanied
by a separate assessment of the student’s ability to participate in athletics.
• Need for clarification:
– OCR’s suggestion seems to contemplate a wholly separate 504 Team meeting
and suggests that a different make-up of the team may be required for an
“athletics” assessment. The DCL, however, provides no guidance as to that
make-up.
– There is also a need for clarification as to the standard of review that will be
applied by OCR when a district decision is challenged. That is, will OCR
review the process used to ensure consistency with law, as opposed to the
decision ultimately reached by the team.

• Meaning of “Opportunity to Benefit”
– The DCL states that Section 504 regulations require school
districts to provide qualified students with disabilities an
opportunity to benefit from the school district’s program equal to
that of students without disabilities.
– Neither OCR nor its Section 504 regulations elaborate on what it
means for a school district to provide an opportunity to benefit
from its elective extracurricular athletics program.
– OCR should clarify whether an opportunity to benefit means that a
district must affirmatively provide a student with a disability the
opportunity to participate in any/all aspects of the athletics
program.
NSBA Response:

• Use of “Fully and Effectively” Standard:
– OCR states in the DCL that in assessing Section 504 compliance,
it considers whether a district’s extracurricular athletics program
“fully and effectively” meets the “interests and abilities” of its
students with disabilities.
– This language mirrors standards used in assessing Title IX
compliance in athletics programs and creates a mixing of
standards which causes confusion in the school community.
– This language also raises concern because the Section 504
regulations do not contain any provision or requirement that a
district’s extracurricular program meet this standard.
– Reading such a legally-unsupported standard into Section 504
regulations seems to create a preference in favor of students with
disabilities related to athletics that is neither currently available
nor required for students without disabilities.
NSBA Response:

• DCL states that “OCR would view a school district’s failure to
address participation or requests for participation in extracurricular
activities for a qualified student with a disability with an IEP in a
manner consistent with IDEA requirements as a failure to ensure
Section 504 FAPE and an equal opportunity for participation.”
• Practical effect of this sweeping language has the consequence of
rendering most IEPs in violation of Section 504, since few IEPS
probably contain a provision about a student’s request for an equal
opportunity to participate in extracurricular activities.
• Saddling school districts with a presumption of noncompliance is
unfair, and minimizes the good faith efforts of the student’s IEP
team.
NSBA Response:
Confusing Blend of OCR Enforcement Standards

• Applicability of FAPE Standards to Extracurricular Activities:
– Since Section 504 regulations mean literally a “free appropriate
public education,” participation in a school’s extracurricular
athletics program could be understood as being purely elective
and not related to the student’s required educational component.
– Section 504 regulations support this view, discussing student
evaluation and placement in terms of educational, rather than
athletic, needs.
– This confusion creates a new “litigious path” for plaintiffs
seeking to capitalize on a school district’s uncertainty as to how
to identify and meet its obligations to accommodate a disabled
student’s request for an opportunity to participate in
extracurricular athletics.
NSBA Response:

• The Department of Education’s spokesperson, Daren Briscoe, stated
that the Department’s position is that the DCL is a guidance
document for school districts. It does not create a right for
wheelchair basketball but instead “urges” school districts to find
ways to provide students with disabilities the opportunity to
participate in extracurricular activities.
• School districts need a statement from OCR regarding the
outcome if a school district failed to meet the “urgings” set forth in
the DCL---will it be found in violation of Section 504?
• School districts also need clarification that the DCL is not a mandate
requiring school districts to adopt expanded athletic opportunities
for students with disabilities, including separate and different teams
that are to be supported equally with other athletic activities.
NSBA Response:
Need to Clarify Ultimate Conclusions Reached in DCL

Other Responses:
• Department of Education
– “School districts may continue to select the best players as
they define it as long as they aren’t excluding kids because of
their disability.”
– “Sports can provide invaluable lessons in discipline,
selflessness, passion and courage, and this guidance will help
schools ensure that students with disabilities have an equal
opportunity to benefit from the life lessons they can learn on
the playing field or on the court.”
• National Education Association
– “All students have the human and civil right to a quality
public education with equal access that develops their
potential, independence and character.”
• Active Policy Solutions
– “This is a landmark moment for students with disabilities.
This will do for students with disabilities what Title IX did for
women and girls. This level of clarity has been missing for
years.”

Other Responses:
• Thomas B. Fordham Institute, Michael J. Petrilli, “The Obama Administration
invents a right to wheelchair basketball”
– “The step that federal officials are taking today will have wide-ranging
consequences for decades to come. It potentially puts school districts on the
hook for billions of dollars…. At the very least, the changes should be subject
to the regular regulatory process, which allows for public input, demands an
accounting of potential costs, and gives all sides [the opportunity] to voice their
concerns. A better solution is to let legislators take up this question….”
• NSBA, Inquiry & Analysis, Richard E. Kroopnick, “Section 504, OCR and
Extracurricular Athletic Activities: Confusion Over the Rules of the Game”
– The DCL is intended to advise school districts of their obligations under
Section 504. OCR is relying on a 504 FAPE standard that lacks judicial support.
United States Supreme Court precedent establishes “reasonable
accommodation” and “fundamental alteration” as the controlling standards.
– The “separate or different athletic opportunities” discussion in the DCL needs
clarification about whether it was included as a suggestion or a legal obligation.

South Plainfield Board of Education, 113 LRP 16932
(New Jersey State Educational Agency, Apr. 3, 2013)
• Held: A New Jersey district did not violate the IDEA by
declining to provide the transportation services a 12-year-old
boy needed to participate in extracurricular activities at his out-
of-district special education school.
– Because the student made adequate progress toward his
social skills goals without participating in afterschool
activities, those services were not necessary to provide the
student FAPE.
– IDEA only requires districts to provide the specialized
instruction and related services that students with
disabilities need to receive FAPE.
– The student did not need to participate in extracurricular
activities to receive FAPE, so the IDEA did not require the
district to provide the transportation services the student
needed to participate in those activities.

S.S. by Schor v. Whitesboro Cent. Sch. Dist., 112 LRP
5880 (N.D.N.Y. Jan. 31, 2012).
Held:
• New York district concluded that permitting a swim team
member to leave the pool when she had panic attacks was not a
reasonable accommodation, it dismissed her parents' Section
504 and ADA claims. Any such accommodation would have
fundamentally altered the nature of the district's swim program.
– “There is no reasonable accommodation that a swim team coach could
make for an athlete who is suddenly and sporadically afraid of the
water and thus has to exit the pool during practices and competitions.
Remember:
• An accommodation for a student to participate in an
extracurricular activity is not reasonable if it would
fundamentally alter the nature of the activity. 28 CFR 35.130
(b)(7). If the accommodation would subvert an essential
element of the program, then, barring an IEP or 504 plan that
requires otherwise, a district need not provide it. Here, the swim
team member wanted to be able to leave the pool unpredictably
during practices and meets to assuage her fear of drowning.
Because staying in the pool was an essential aspect of being a
swim team member, the accommodation was unreasonable.

1) Don't wait, be proactive. Don’t wait for parents to request
supports for activities, ask what extracurricular activities the
student participates in or is interested in before the IEP
meeting.
2) Discuss possible supports. At the meeting, discuss what
services and supports the student needs to have an equal
opportunity to participate in the activity.
3) Don't overlook the need to identify any accommodations
required for the student to try out for the team or club.
4) Remember that accommodation for team tryouts should not be
designed to give the student a competitive advantage; they are
meant to level the playing field.
For Now… What Can School Districts Do to Ensure
That They Are Complying?

For Now… What Can School Districts Do to Ensure
That They Are Complying?
5) Involve the coach or activity sponsor in the IEP meeting.
• The coach is often the most knowledgeable about if and how a proposed
accommodation fundamentally alters the nature of the activity. If it does,
the school is not required to allow the student to participate with that
accommodation.
• The coach can inform the team of any rules that govern whether the
student is eligible to participate.
6) Choose words wisely when writing accommodations and
document decisions not to grant accommodations.
• Accommodations should not grant automatic eligibility for a student to
participate in the activity or be worded so that the IEP could be
interpreted in such a way that participation in the activity is required for
the student to receive FAPE.
• One example for wording an accommodation : "If eligible and selected
to participate on the basketball team, the student needs the following
accommodations: .”

Any Questions??
Samuel L. Jackson
Lewis, King, Krieg & Waldrop, P.C.
sjackson@lewisking.com
(615)259-1366

CHRIS MCCARTY
Attorney, Lewis, King, Krieg & Waldrop, P.C.

RANDALL BENNETT
TSBA Deputy Executive Director and General Counsel

Phillips v. Robertson County
School Law Quarterly
Vol. 12, Issue 3 pp. 1-2

0 Misty Phillips’ son, Jacob Gentry, was having difficulty
adjusting to the 7th grade
0 Clinical psychologist diagnosed him with Anxiety
Disorder and Adjustment Reaction with Asperger’s
0 Phillips requested an IEP and a meeting was held
0 Team referred Jacob for further testing which
indicated that he did not meet special education
guidelines for any disability but qualified as gifted

0 In May of 2006 there was a physical altercation with
another child, W.K., (while the teacher was out of the
room) which resulted in serious injuries to Jacob’s left
eye that required 4 surgeries and left him legally blind
in that eye
0 Ms. Phillips filed a negligence suit against Robertson
County and several named individual employees
0 Individual defendants were dismissed and case
proceeded against the District

0 Trial court found that Jacob was a victim of bullying
and that the school was on notice and noted that the
school was aware he could be a “bully magnet”
0 Trial court additionally found that Jacob’s teacher
0 Did not review his IEP
0 Was not made aware of Jacob’s special needs and
circumstances by school officials
0 Was never shown the initial evaluation
0 Failed to follow school policy concerning supervision of
her classroom

0 Trial court concluded that the incident was
foreseeable and occurred as the result of the
negligence of the Defendant and that was the
proximate cause of the injury
0 The court entered judgment in favor of the plaintiff in
the amount of $300,000 (limit under Tennessee’s
Governmental Tort Liability Act)
0 School district appealed

0 Court of Appeals affirmed the decision that the
district was negligent in failing to properly advise the
teacher about Jacob’s condition
0 School district argued that the incidents reported by
Jacob and his mother reflect the kind of teasing and
“goofing” engaged in by typical middle school kids
0 The Court pointed out that this case was about failure
of supervision and of dissemination of information
and that given what the district knew about Jacob it
should have foreseen that he could be injured when
left unsupervised

Kyle v. City of Jackson
Vol. 12, Issue 3 pp. 3-4

Kyle v. City of Jackson
0 Not a school case but deals with negligence and
comparative fault
0 Ms. Kyle sued the City of Jackson for a fall and injury
she sustained at a dinner theater event held at the
Ned R. McWherter Cultural Arts Center
0 Key point to remember is that if the Defendant can
prove that the Plaintiff is 50% or more at fault for her
own injuries then she cannot recover damages from
the Defendant

Thompson v. Memphis City
Schools (Part 1)
Volume 13, Issue 1, pp. 1-2

Schools
0 Thompson had been a teacher with MCS since 1987
0 In 2004 an incident occurred at school which required
her to take sick leave for the remainder of the 2004-
05 year and on into the 2005-06 year
0 Thompson returned to work during the Fall of 2006
but there was soon a dispute as to whether she had
requested leave in the spring of 2007
0 Thompson was under the impression she had sick
leave and there was a letter in her file requesting
further leave from her physician

Schools
0 When Thompson did not return to work, the Board’s
Labor Relations Administrator sent a letter stating
that her failure to return to work warranted discipline
and termination
0 The letter sent by the board did not meet the
requirements laid out by statute for the termination of
a tenured teacher

Schools
0 Thompson was terminated after she failed to return to
work at the end of her sick leave
0 Board failed to do the following:
0 Send a letter identifying the charges
0 Failed to provide her with the required form letter from
the Commissioner detailing her legal rights
0 Failed to inform her of her right to a tenure hearing
0 Thompson’s attorney wrote a letter stating that she
had been improperly terminated and requested a
tenure hearing

Schools
0 After four months a complaint was filed in Chancery
Court alleging that the termination violated the
Teachers’ Tenure Act and the Fourteenth Amendment
Due Process Rights
0 The complaint sought
0 Reinstatement
0 Full back pay
0 Compensatory damages
0 Attorney fees
0 Injunctive relief

Schools
0 Both sides attempted to hold a tenure meeting
0 Notice of charges was never delivered to Thompson and
she refused to participate
0 August 2009 the Superintendent sent Thompson a letter
informing her of the charges and of her legal rights
0 Thompson refused to participate in the hearing and sought
an injunction
0 Chancery court granted injunction and stated the hearing
would be contrary to law until she was reinstated

Schools
0 Based on the Chancery Court’s opinion the Board
reinstated Thompson and scheduled a tenure hearing
0 Thompson objected to her reinstatement by stating
she had not accepted the reinstatement
0 Hearing was suspended until the court clarified the
term “reinstatement”
0 Court stated that reinstatement was controlled by 49-
5-511(a)(3) requiring payment of full salary
0 Board objected and refused to reinstate

Schools
0 After numerous requests for summary judgment and
dismissal, the court granted Thompson’s motion for
summary judgment
0 Court found the doctor’s letter valid and granted her
reinstatement and full back pay
0 Court also concluded her due process rights were
violated and awarded her damages and attorney fees
$320,000
0 MCS appeals

Schools
0 Court of Appeals found that Thompson did have
enough factual allegations to support a claim
0 COA held that MCS deprived Thompson of her
property interest
0 COA affirmed the trial court’s decision not to dismiss
0 COA held that since there were disputed facts as to
whether Thompson filed a leave of absence for Spring
of 2007 that summary judgment was improper

Schools
0 COA also determined that the award of back pay and
compensatory damages was inappropriate because:
0 Summary judgment was improper because of disputed
facts
0 Back pay is only appropriate if teacher is reinstated or
vindicated
0 Chancery court review is limited only to the written
record unless evidence shows that board was arbitrary
or capricious
0 Remanded (end of Part 1)

McCormick v. Warren County
Board of Education

Board of Education
0 Ms. McCormick was injured after attending her
granddaughters high school graduation when she stepped
in a hole in the parking lot and fractured her ankle (2005)
0 Several months after she sustained a second fracture to the
same ankle
0 In May of 2006 she filed suit alleging negligence and
seeking $100,000 in compensatory damages
0 Board sought summary judgment but that motion was
denied and then amended its answer to assert comparative
fault asserting that it was an obvious “drainage area”

Board of Education
0 Trial court rejected the Board’s argument that the
hole in the football field was concealed by grass and
thus was a latent defect (immune from liability)
0 Board appealed raising the previous issue and arguing
that the trial court erred in failing to allocate any fault
to McCormick under the affirmative defense of
comparative fault
0 Court of Appeals affirmed on the “latent defect”
finding but remanded on the issue of comparative
fault

McCoy v. Columbus City
Schools

Schools
0 Gary Stroup was a forth-grade teacher who was apparently
involved in questionable incidents with students as early
as 1999
0 Additional incidents happened in 2000-2001 and 2003-
2004
0 In the spring of 2005 two other students witnessed Stroup
touching “John Doe” inappropriately and reported it to the
principal
0 An investigation by law enforcement and child services
resulted in a fifteen-count indictment and a guilty plea for
two of those and Stroup was sentenced to ten year’s
incarceration and the surrender of his teaching license

Schools
0 Doe, through his parents the McCoys, filed suit
alleging violations of substantive due process, Title IX
and related state claims
0 Upon completion of discovery, District filed a MSJ and
the McCoys cross-filed a partial MSJ
0 The District Court held that there was not enough,
until the final incident that resulted in imprisonment,
to determine that Stroup’s behavior was severe or
obvious enough to give notice that the most recent
event would occur

Schools
0 The school district did not have “actual notice” based
on the prior behavior, nor did it act with “deliberate
indifference”
0 The board had investigated prior incidents and took
appropriate action with Stroup…since none of the
prior allegations included any accusation of sexual
harassment
0 The Sixth Circuit affirmed the trial court

McBurney v. Young
(SCOTUS)

McBurney v. Young
0 This case is based on the Virginia Freedom of
Information Act which states that public records shall
be open to inspection/copying by any citizen of the
Commonwealth
0 Tennessee’s Open Records Act states that public
records, “shall…be open for personal inspection by
any citizen of this state…”
0 In 2001, the Tennessee Attorney General opined that
persons who are not citizens of this state may be
denied access to public records

McBurney v. Young
0 SCOTUS stated/held
0 Virginian law’s citizen/noncitizen wording has a
nonprotectionist aim
0 Citizens should have a mechanism to obtain an
accounting from public officials but noncitizens do not
0 Citizens foot the bill for the costs of recordkeeping
0 FOIA does not violate the dormant Commerce Clause…
“when having created a market through a state
program, it limits benefits generated by that state
program to those who fund the state treasury and
whom the State was created to serve” Decision 9-0

Parker v. Lowery

Parker v. Lowery
0 Parker was a non-tenured teacher who had worked for 3
years and eligible for tenure (2009)
0 She was informed by her principal that she would not be
re-hired for the coming year and the Director (Lowery)
sent her a letter indicating the same
0 Teacher asked for a hearing to be scheduled with the
Board but Lowery refused
0 Teacher filed suit alleging that Director exceeded his
authority and that the Board had unlawfully abdicated
its authority to decide tenure matters

Parker v. Lowery
0 Meanwhile, a Board Member filed suit alleging that the
Board had relinquished its authority by allowing
Director to make decisions regarding tenure without
interference from the Board
0 Initially the decision hinged on 49-5-409(b)(1) which
required a statement of prior authorization by a
majority vote of the board with the name of the teacher
recorded in the minutes (this was deleted in the 2011
session of the General Assembly)
0 Trial court ruled in favor of the teacher and board
member based on that statute

Parker v. Lowery
0 Defendants filed a motion to alter or amend which the
trial court granted ultimately holding that the Board
would have been the proper party with standing to raise
the issue
0 On appeal the question(s) were whether the trial court
erred in dismissing the Teacher’s and/or Board
Member’s cases and whether either plaintiff had
standing to sue
0 Court of Appeals affirmed

Dickerson v. Rutherford
County

Dickerson v. Rutherford
County
0 Yet another “slip and fall” negligence case
0 All these cases are very fact specific and boil down to
where the most fault lies
0 Trial court found for the County
0 Court of Appeals reversed and remanded for further
proceedings

Schools (Part 2)
Teacher Dismissal Due Process

Tennessee Supreme Court
0 TCS granted the appeal to determine whether a
tenured teacher’s failure to return from sick leave
amounts to a constructive resignation or a forfeiture
of tenure
0 While a failure to return may constitute cause for
termination there is no statute authorizing a board of
education to deem it a construction resignation or a
forfeiture of tenure

Tennessee Supreme Court
0 By dismissing Thompson without providing her
written charges or an opportunity for a hearing her
rights were violated under the Tenure Act and due
process rights under the Fourteenth Amendment
0 Trial court properly granted summary judgment and
properly awarded damages pursuant to Tenure Act
and USCA § 1983 and attorney fees pursuant to USCA
§ 1988.
0 Remanded to trial court to calculate additional salary
and benefits that accrued during the pendency of this
appeal

What is the Moral
of This Story?

Attorney General Opinions
Volume 12, Issue 3 pp. 5-8
Volume 12, Issue 4 pp. 2-5
Volume 13, Issue 1 p. 8
Volume 13, Issue 2 p. 8

A.G. Opinion No. 12-60
Question
Can members of a county or city legislative body share a meal together and
casually discuss county or city business and/or issues before their
respective legislative bodies under the Open Meetings Act, if the discussion
is for informative purposes only and no decisions are reached or attempts
made to obtain commitments?
Answer
The private discussion of public business at a meal by two or more
members of a governing body could present the potential issue of whether
a chance meeting, or informal assemblage, was used to decide or
deliberate public business in circumvention of the spirit or requirements
of the Open Meetings Act. Court decisions under the Act are necessarily
fact dependent. Nonetheless, to avoid any violation of the Act the best
advice is that, while two or more members may share a meal together in
which public business is discussed, such discussion should not constitute
deliberations, i.e., “examin[ing] and consult[ing] in order to form an
opinion . . . weigh[ing] arguments for and against a proposed course of
action.” See Johnston v. Metropolitan Government of Nashville and
Davidson County, 320 S.W. 3d 299, 311 (Tenn. Ct. App. 2009).

Question
Does a 17-year-old student’s enrollment in state-approved general
educational development (“GED”) programs under Tenn. Code Ann.
§ 49-6-3001(c)(2)(B) violate the compulsory school attendance
requirements set forth at Tenn. Code Ann. § 49-6-3001(c)(1)?
Answer
No. Tenn. Code Ann. § 49-6-3001(c)(2)(B) allows a 17-year-old
student to enroll in state-approved GED courses in fulfillment of
Tennessee’s compulsory attendance requirement provided that, in
the judgment of the local board of education, the student continues
to make satisfactory progress in the GED courses.

Question
If a municipal school district is created in Shelby County, is the
County required to apportion funding from countywide property
taxes to the municipal school district on an average daily
attendance (ADA) basis?
Answer
Shelby County would be required to apportion funding from
countywide property taxes to the municipal school district based
on “weighted full-time equivalent average daily attendance”
(WFTEADA).

Question
Is the Jackson-Madison County School System eligible to be a
participating employer in the Tennessee Consolidated Retirement
System (TCRS) with respect to its non-teacher personnel if Madison
County withdraws from TCRS?
Answer
No. The school system may not participate in TCRS if Madison County
withdraws. A local governmental entity’s eligibility to participate in
TCRS depends on the action of the chief legislative body of the political
subdivision of which the entity is a part. In Madison County, non-
teacher employees of the school system have been eligible to
participate in TCRS only because the chief legislative body of Madison
County passed an appropriate resolution authorizing such
participation in 1978. The County’s chief legislative body, now known
as the Madison County Commission, has the authority to pass a
resolution terminating its participation in TCRS, and this resolution is
binding on non-teacher employees of the school system.

Question
If a local board of education, in considering an amended charter
school application under Tenn. Code Ann. § 49-13- 108(a)(2), fails
“either to deny or to approve the amended application,” will the
application be deemed approved or will it be deemed denied?
Answer
The amended application is deemed approved pursuant to Tenn.
Code Ann. § 49-13-108(a)(2), as revised by 2012 Tenn. Pub. Acts,
ch. 1021 effective July 1, 2012.

Question
Is Chapter 1065 of the 2012 Tennessee Public Acts, which allows
local education agencies (LEAs) to sponsor charter schools,
constitutionally suspect?
Answer
No.

QUESTIONS
1. Is the Other Post-Employment Benefit Investment Trust
Act of 2006, codified at Tenn. Code Ann. §§ 8-50-1201 to
-1207 (hereinafter “the OPEB Act”), the only statutory
authority that permits county school boards to establish
an OPEB investment trust?
2. How may funds in an OPEB trust created under the OPEB
Act be invested?
3. May the Tennessee School Boards Association (“TSBA”)
administer an OPEB trust created under the OPEB Act?
4. Does the Interlocal Cooperation Act authorize county
school boards to collectively establish an OPEB trust
under the OPEB Act?
5. May a single county school board, or two or more county
school boards, contract with TSBA to create and operate
an OPEB trust?

OPINIONS
1. The OPEB Act does not expressly preempt other statutes that may allow one or
more Tennessee political subdivisions to establish trusts similar to the ones
referenced in OPEB. Thus a private or public act could authorize a particular
school board to create an OPEB trust without complying with the OPEB Act.
But, absent such express authority, it appears the OPEB Act was intended to be
the only statutory authority under which a county school board may create an
investment trust for the purpose of pre-funding non-pension post-employment
benefits accrued by employees of the political subdivision (hereinafter an
“OPEB trust”). For this reason, absent the existence of any conflicting authority,
any OPEB trust created by a county school board must comply with the OPEB
Act.
2. Funds in an OPEB trust created under the OPEB Act must be invested as
required by Tenn. Code Ann. § 8-50- 1205(1).
3. Yes.
4. Yes. Under the OPEB Act, the OPEB trust to be created must be approved by
resolution by each individual school board and by the state funding board.
Once each school board seeking to collectively create an OPEB trust has
obtained the requisite approvals, the school board may enter an interlocal
agreement with other schools under the Interlocal Cooperation Act to jointly
exercise their statutory powers to administer an OPEB trust. Any such trust
must comply with the requirements of the OPEB Act.
5. Yes.

Questions
1. Whether either the United States or Tennessee Constitution
prohibits a local government from requiring its employees to live
within the local government’s jurisdiction, even where safety
concerns do not require an employee to be readily available?
2. If the answer to question one is no, could the General Assembly
constitutionally prohibit local governments from requiring their
employees to live within the local government’s jurisdiction?
3. May the State or a local government constitutionally impose
residency requirements or incentives that give preferential
treatment to contractors that are either residents of the State or of
the area encompassing a local government?
4. May the State or a local government constitutionally use race-
based classifications in awarding public contracts?

Answers
1. No.
2. Yes, the General Assembly could constitutionally prohibit
local governments from requiring their employees to live
within the local government’s jurisdiction.
3. Generally yes.
4. Any racial classification used in awarding public
contracts is subject to strict scrutiny and will only be
upheld if the state or local government can establish that
it is narrowly tailored to promote a compelling
governmental interest. Courts have found that remedying
the effects of past intentional discrimination is a
compelling governmental interest.

QUESTION
Is Chapter 879 of the 2012 Tennessee Public Acts, effective
July 1, 2012, constitutionally suspect?
ANSWER
Chapter 879 is constitutionally suspect.
Chapter 879, if applied to limit the employment in Tennessee
of non-immigrant foreign workers admitted to this country
through federal visa programs, would likely be found, like the
Arizona law in Truax, to unconstitutionally interfere with the
federal government’s regulation of legal aliens residing in
this country.

QUESTIONS
1. Can a school board legally extend a contract of a director of schools
without giving the notice required by Tenn. Code Ann. § 49-2-203?
2. If not, would the extension of a contract with a director of schools that was
made without the proper notice required by Tenn. Code Ann. § 49-2-203
be valid?
OPINIONS
1. No.
2. An extension of a director of schools’ contract made without the proper
notice required by Tenn. Code Ann. § 49-2-203 would be invalid.
(It is the opinion of this office that the statutory prohibition on contracts greater
than four (4) years [Tenn. Code Ann. § 49-2-203(a)(14)(A)] is not impacted by
Opinion 12-100)

QUESTIONS & ANSWERS
1. Does a county school board member, in a county that has adopted the
County Financial Management System Act of 1981 (“CFMSA”), codified
at Tenn. Code Ann. §§ 5-21-101 to -130 have a conflict of interest
under Tennessee law if the board of education and county
commission contract with a public building authority and
construction manager to remodel a high school, the construction
manager then hires a general contractor to perform the work, and the
general contractor issues requests for public bids on subcontracts for
the project and ultimately awards a subcontractor for electrical
materials and services to a company that the school board member
owns with his or her parents? (Probably no).
2. Does a county school board member, in a county that has adopted the
CFMSA, have a conflict of interest under Tennessee law if a company
owned by the member and the member’s parents is awarded no-bid
contracts by the school system for minor electrical repairs, including
labor and materials, performed at facilities owned by the county
school system? (Probably no).

QUESTIONS
1. Does Tenn. Code Ann. § 12-4-115 apply to contracts procured
by a local education agency for the construction or renovation
of public school buildings? (Energy related services)
2. Does the answer to the first question depend on the specific
procurement process employed by a local education agency for
its construction projects?
OPINIONS
1. No.
2. No.
(TSBA worked on legislation to change the results of this opinion
which resulted in the passage of Public Chapter 281)

QUESTION
Does the school voucher program proposed by an amendment to
Senate Bill 196/House Bill 190 of the First Session of the 108th
Tennessee General Assembly (hereinafter “HB190”) violate either
the United States or Tennessee Constitution, specifically the
Establishment Clause of the First Amendment of the United States
Constitution or article XI, section 12 of the Tennessee Constitution?
OPINION
The proposed amendment to HB190 is defensible from a facial
constitutional challenge.

QUESTION
Under Tennessee law, a local education agency (“LEA”) receives
Basic Education Program (“BEP”) funding for the current year
based on the LEA’s prior year total student enrollment, with the
opportunity to receive additional BEP funding if the LEA has a
certain growth in its total student enrollment in the current year. If
an LEA experiences a drop in total enrollment for the current year,
must the LEA pass through funds on a per-pupil basis to charter
schools within the LEA based on the number of students that are
attending the charter schools during the current year?
OPINION
Yes. The LEA must pass through funds on a per-pupil basis to
charter schools within the LEA based on the students that attend
the charter schools during the year the LEA funds are distributed.

ETHICS CLE: 4:20 – 5:20 P.M.
Attorneys Only – Garden View AB Room

BREAKFAST SATURDAY, JULY 13
7:30 – 8:30 a.m., Mountain View Room

WRAP-UP & ADJOURN

THANK YOU!

ROBB BRITT
Director, Blount County Schools
SGT. JEFF HICKS
SRO Blount County Sheriff’s Office

T S B A
S U M M E R L A W I N S T I T U T E
J U L Y 1 3 , 2 0 1 3
Forming Effective Partnerships
Between Schools and Law
Enforcement

In the Beginning
 Culture Shift from flying solo to flying together on
the school safety journey
 Move from Principal/Assistant Principal as SRO
 Move to Principal/Assistant Principals working
together with an SRO
 Create a coordinated effort around safety

Working together
 Cooperation with Sheriff’s Office, School System and
County Commission
 SRO works to secure our buildings with managing
the Crisis Plan
 Transportation/Traffic – bus, car, parents and
students
 Special Education – ABC classes
 Assists with our drug and alcohol free schools

Creating Community
 Consistently builds community relationships
 Works with administration – working together is
better than independently when it comes to school
safety
 SRO builds important relationships with all
stakeholders - Staff, Students, Parents, Businesses,
etc.
 SRO knows the students!

Group Effort = Positive Results
 Crisis Management Meetings Quarterly
 Oversees Risk Management at school
 Instrumental in planning of new schools
 Camera Locations and Positions
 Incident Command
 Advise and Guide working with Counselors

DEVELOPING PARTNERSHIPS FOR SAFE
SCHOOLS

Blount County Demographics
 Population 123,901 ( 2011 Census)
 567 sq. miles
 Almost 11,000 students K-12
 58% Economically Disadvantaged
 13% Special Education
 21 Schools

Mr. Britt’s Bio
 28 Years with the Blount County Schools
 Teacher/Coach at William Blount High School (8 years)
 Assistant Principal at William Blount High School (8 years)
 Principal at Carpenters Middle School (8 years)
 Director of Schools (4 years)

Blount County’s S.R.O. Program
 School Resource Officers implemented on high school
campuses in 1996.
 Expanded to middle schools in 1998.
 School Resource Officers assigned to all schools in Blount
County in 1999.
 Currently 23 deputies assigned to the S.R.O. program.

Key Components
 Detailed Memorandum of Understanding.
 Selection and screening of the school resource officers.
 Assessment and evaluation of the S.R.O. for the campus
environment.
 Crisis planning with the principals, faculty and staff.

Perspectives of the School Resource Office
Program
 As an Educator
 Serving as a Principal
 Role as a Director of Schools

Sgt. Jeff Hicks’ Bio
 Began working with Blount County Schools as a D.A.R.E.
instructor in 1992.
 First office for a deputy placed on school campus in 1995
through the community oriented policing program.
 Joined the S.R.O. program in 1998.

Duties of Supervision
 Day to day operations of the S.R.O. unit
 Principal and S.R.O. communication
 S.R.O. interaction with students, parents and school staff
 Emergency response planning for schools
 Threat Assessment

REPORTING SYSTEM FOR STUDENTS AND
PARENTS
 On February 1, 2011 the Text-A-Tip program was
launched for Blount County.
 Since the implementation we have received over 500 tips
from the community.

Blount County
911
School
Campus
Administrators
Local
School
Districts
Law
Enforcement
Agencies
School
Resource Officer

EXPANDING THE PARTNERSHIP FOR SAFE
SCHOOLS
 911 Center
 Emergency Medical Services
 Fire Departments
 Local Health Care Providers
 Corporate Sponsors

QUESTIONS

WRAP-UP & EVALUATION

TSBA 2013 Summer Law Institute Gatlinburg

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