Legal Updates for the 2017/18 School Year

Notes from July 28, 2017 EdCounsel Seminar

OCR Memorandum:

Internal guidance from the Office Of Civil Rights will likely reduce the scope of investigations. For example, a complaint regarding a singular incident will be less likely to result in requests for data and documentation unrelated to the incident. The memo can be found below.

http://www.edcounsel.law/wp-content/uploads/2017/07/OCR-memo-re-investigations.pdf

Construction:

In Penzel v Jackson the court found that schools can be found liable for providing inaccurate specifications to contractors and subcontractors. Districts are advised to have all contracts with architects and bidding documents reviewed by legal counsel to reduce liability. Implied warranties should be disavowed.

While legislation was introduced to eliminate prevailing wage in Missouri, it did not pass. Prevailing wage is still law and should be included in all requests for bids.

Student Searches:

In State v Williams the court tightened qualification for allowable searches. It seems administrators have a higher bar to clear for demonstrating justifiable suspicion.

MHRA:

The Missouri Human Rights Act has been modified through legislative action which takes effect August 28. The causation standard for discrimination claims has been changed from "contributing factor" to "motivating factor." Additionally, individual liability for administrators has been eliminated.

Student Power of Attorney:

SB 128 expands the ability to transfer POA for students; however, it does nothing to change residency requirements. A parent can not grant POA to someone living in a neighboring district as a means for enrolling in the district. Also, granting POA does not eliminate parental rights. SB 128 requires annual renewal.

Violent Threats and Social Media:

In Ross v City of Jackson the court defined true threats on social media. It seems administrators have more leeway to determine threats. Free speech claims will offer less protection for individuals posting comments that are perceived as threatening. Administrators are encouraged to document and capture screen shots.

Random Drug Testing:

In Kittle-Aikeley v Strong, the court ruled drug testing in a college trade program was constitutional only because a safety concern could be demonstrated. Schools must be able to articulate the need for random testing in policy. The bar for requiring random testing seems to be rising.

Transgender Students:

On July 18, 2017 the Missouri Court of Appeals determined that a transgender student did not make a viable claim of sexual discrimination in RMA v Blue Springs Schools. Several other cases are working their way through federal courts. Districts are advised to clearly document adherence to OCR complaint processes. Adopting specific policies may not be advisable. Administrators should strive work with transgender students and families on a case by case basis.

Retirees:

SB 62 makes it more difficult to use retired teachers in 550 positions and as substitutes. Districts using contracted services for substitutes should contractually require contractors to track and report hours worked.

Celebrating the Solar Eclipse with a Digital Breakout Room, a guest post from Wendy Lentz

Monday, August 21, 2017 is shaping up to be an exciting day for parts of the United States.  The long awaited solar eclipse is upon us and offering excitement, opportunity, and challenge in the education community.  While some schools may still be enjoying summer vacation others will just be dipping their toes into a new school year.  My school district in Missouri will be just four days into the new year.  In anticipation of the big event I have created a digital breakout room (and shared it for you to use below) for my students to complete.  While breakout rooms can be used for any grade level or curricular area, this particular breakout is designed for grades 6-12.  With some additional adult support it could also be use with younger students perhaps in a home school environment or adults at an eclipse party.

As we prepare for this big event, I am keeping three primary objectives in mind, knowledge, safety, and experience.  I desire for my students to gain new knowledge in the science behind the event and in the known history of eclipses.  I also desire for them to be safe and understand what the dangers could be if they aren’t making smart choices. Finally, I want them to truly experience this phenomena with their eyes and their brains.  With all of these things in mind I knew this was an opportunity that couldn’t be passed up.  I imagine my school and most all schools in my area will be planning events for this day.  With that being said I am preparing to be flexible with implementation.  While the breakout could be done on the day of the eclipse I don’t want to chance kids missing the chance to complete the breakout.  We will complete the activity a couple days prior to allow for full participation.

So what is a breakout room?  Breakout rooms began gaining in popularity around the world in 2010.  The former first family was even spotted taking in a breakout room a few years ago in Hawaii. These rooms are physical spaces that challenge the participants to breakout or escape by solving problems, puzzles, codes, and riddles in order to unlock parts of the room leading to an eventual escape, hopefully.  The rooms are themed and typically carry a 60 minute time limit.  My family recently participated in a breakout room for my daughter’s thirteenth birthday.  It was intense and fun.  It was interesting to see how everyone in the group worked a little differently during the challenge and how proud we were when we solved a problem.  Meanwhile, one member of the group constantly begged for clues.  While I won’t name any names his relation to me rhymes with fusband.

My family escaped!

Watch as these newscasters experience a breakout room.

Where is the connection to the classroom?  As breakout rooms grew in popularity, teachers began incorporating the structure into their classrooms as a way to teach or review material while causing students to investigate, solve problems and to build teamwork skills through a highly engaging activity.  This kind of experiential learning and teaching is driven by how something is taught versus what is being taught.  These activities also offer students opportunities to build a resilience to failure and the courage to persevere through a challenging situation or problem.

As the use of breakout rooms in education has expanded, the structure of their implementation has also evolved.  Earliest rooms were designed and built by individual teachers.  In 2015, the website and blog breakoutedu.com began offering quality kits, templates, and breakout plans for teachers to purchase and use.  Recently, some teachers began using a digital version called digital breakout rooms.  These digital rooms offer students the same opportunities to solve puzzles, search for clues, and unlock a variety of locks without additional costs to the teacher.

Here is the link to the digital breakout room for the Solar Eclipse Breakout.  I have not included the answers on the site but I'd be happy to share them with you if needed.  I would highly encourage you to to complete the breakout on your own first to fully experience it; The Cult of Pedagogy would call this Dogfooding.  The base of the breakout is a Google site with embedded information and clues.  Encourage students to read carefully and closely.  Remind them to click on EVERYTHING and think creatively to unlock the locks in the google form.  If students don't enter a lock code correctly the line underneath will remain red, but when it turns blue the lock is unlocked!  Remember that you are just the facilitator.  It is natural for the students to reach a point of frustration when they are stuck. You can help guide them by continuing to offer questions to open their thinking.  Keep in mind that some of the information on the site has no purpose except to inform, these bits of information are called distractors.  When the students unlock all the locks they should submit the form and give the secret phrase to the teacher.  Plan to take photos of student successes and attempts then share with your school community!  I have also included some teacher tips including a 45 minute digital timer, tips for helping students when they are stuck, and a place for participants to leave feedback after the experience.  All of this can be found on a tab in the top right hand corner of the site.  Please keep in mind that the “Teacher Tips” tab is not connected to the breakout room in anyway but everything else on the site is fair game.  If you have questions feel free to email me at lentz-wendy@trojans.k12.mo.us or on Twitter @wendylentz.  Enjoy the eclipse!

Fishing

Four days before my daughter's fifteenth birthday, and a year after a move, we loaded the canoe on top of the van and headed off to go fishing.

After a day fishing "the lake at the old house."
Fifteen seemed a long way off. 

It would be the first time in a year the two of us sat in the canoe together- something we did on an almost nightly basis before the move, when we lived on a twenty-five acre lake that offered a large mouth or crappie on almost every cast. We challenged ourselves at one point to see how many days we could fish in a row- even if it meant sneaking in a few casts in the morning before school. The move was a big adventure, and a successful one, but it didn't provide many opportunities for little adventures.

The canoe sat at the edge of a little farm pond, too small to hold much more than the tiniest sunfish. My son enjoys paddling around it with his Buzz Lightyear pole, but Savannah never took the bait- it wasn't the lake at the old house.

I was surprised and excited when she took interest in heading to the Grand River. When she was little, she enjoyed fishing. Mostly I enjoy catching. If they're not biting, I'm ready to head to the house. But Savannah was always stubborn. If the action was slow, she got frustrated, but she would not quit fishing. I wondered if she had outgrown all that.

The M Hwy Bridge at Bosworth

We paddled upriver from the access, taking the same route steam boats once took from the Missouri to Chillicothe. After stoping at a gravel bar, we began floating downstream, working the bank with a worm and a jig, the way we caught bass in the lake. Cast after cast- no bites. Carp jumped from the surface to mock us, and we were jealous of the fishermen we saw taking fish off trotlines. There was frustration, but there was also comfort in re-engaging in our bickering about who was rocking the canoe, or why it was obvious that casting there would get you snagged.

We didn't do any catching, but we were both glad we went fishing.

Leading Change Successfully

Organizational leadership often requires directing change efforts.  At times the efforts are reactive and required by outside forces. While leading a reactive change can be difficult, doing so requires less skill and exposes the leader to less risk than change of a proactive nature. Proactive changes are driven by shifts in stakeholder desires and often result in a changed vison and structure. In a reactive change, driven by changes in revenue or legislation, the leader’s primary task is to communicate and monitor; stakeholders know the change must take place regardless of the leader. In proactive change, the leader must do more than communicate, she must analyze power dynamics while developing and adjusting complex strategies.

Analyzing Power

Too often leaders do not consider the nature of power deeply enough.  As Prusser and Marginson  (2012) noted, “the time is right to more deeply consider the nature and sources of power” (p. 91). An incomplete understanding of power may tempt a leader, especially in educational organizations, to rely too heavily on position or coercive power without understanding the limits of these forms of power (French & Raven, 1959). At times, leaders, realizing that “power is the ability to produce intended effects,” may be intimidated by their potential (Pussser and Marginson, 2012, p. 91).  Leaders do well to remember Foucault’s assessment of power: “We have to stop describing power always in negative terms: it excludes, it represses. In fact, power produces; it produces reality” (Foucault, 1975, p. 12).  The responsibility of leaders is to wisely craft the changes that produce new realities.

Limits of Power

While an educational organization often can be described in a traditional pyramid structure, the power dynamics are often much more complex and look more like “freewheeling coalitions rather than formal hierarchies” (Bolman & Deal, 2013, p. 190).  A failure to understand these coalitions will limit the leader’s ability to enact change. Even in settings where the leader has tremendous power change can be difficult to lead, as evident in the Chinese government's failed efforts to change a culture of copyright abuse (Bolman & Deal, 2013).

Exercising Power Pragmatically

One of the first tasks of a leader charged with implementing change is to survey the current power dynamics through a “force field analysis” (Levi, 2017, p. 231). The leader must measure the support and opposition to the change, while realizing that “organizations are inevitably political” (Bolman & Deal, 2013, p. 190).  Typically, in such organizations, change will be resisted, and the leader must anticipate opposition, because key stakeholders will only recognize power as the “actor’s ability to impose his will in spite of resistance” (Pusser & Marginson, 2012, p. 91).

In these political settings the leader will be well served by using referent power to build capacity, by increasing the number of individuals who support the change, because they desire to join the growing group (French & Raven 1959).  Establishing referent power will only happen when the leader understands how to function in settings where “conventions, words, practices and knowledge are more important than legal decrees” (Pusser & Marginson, 2012, p. 93).  Knowledge, in particular, provides excellent potential for the leader to increase in power, because in dynamic situations, a person who learns and communicates fastest will inevitably be conferred a greater degree of expert power to shift the paradigms of members of the organization (French & Raven, 1959). Communicating the leader’s knowledge in these settings, requires the leader’s to develop and cultivate informal networks (Bolman & Deal, 2013, p. 198). In informal networks, leaders are advised to be aware of the symbolic dynamics at work in an organization because all stakeholders are motivated by values and a desire to seek out significance (Bolman & Deal, 2013). Relationships are the only avenue for identifying moments where the intersection of circumstance, a deeper sense of values, and a desire for significance leave an individual open to accepting a change (Lamar, 2012).

  

References

Bolman, Lee G. & Deal, Terrence E. (2013). Reframing Organizations. San Francisco: Jossey-Bass.

French Jr., John R. P. & Raven, Bertram. (1959).  The basis of social power. In Shafritz, Jay M., Ott, Steven J., & Jang, Yong Suk. (Eds.), Classics of organization theory (pp. 311-320). Belmont, CA: Wadsworth.  

Lamar, Kendrick, 2012. Dying of thirst. On Good kid, M.A.A.D city. Los Angeles, Top Dawg.  

Levi, D. (2017). Group dynamics for teams. Thousand Oaks, CA: SAGE

Pusser, Brian & Marginson, Simon. (2012). The elephant in the room: power, politics, and global rankings in higher eduation. In Bastedo, Michael N. (Ed.) The organization of higher education. (pp. 86-117). Baltimore, MD: Johns Hopkins University Press.

Failing to Lead Change

Myths and Risks

Our society idolizes leaders who affect change. In hiring, a track record of leading successful change is seen as an asset by boards and executives. The value placed on the ability to lead change is grounded in a certain logic. Change is often needed to fulfil the mission of an organization, and “movement toward organizational goals is achieved by the competent action of the people who fill the ranks of institutional staff and management” (Manning, 2013 p. 113). Change is also driven by environmental influences such as those that transformed the telephone industry as noted by Bolman and Deal (2013, p. 86). However, the love affair with change should be critically examined by organizations and by leaders. Myths surround change, and examples of failed change efforts outnumber successful ones. Both leaders and organizations suffer if change is not properly understood.

Organizations often value leaders who are viewed as strategists, because “strategy formulation therefore involves the interpretation of the environment and the development of consistent patterns in streams of organizational decision (“strategies”) to deal with it” (Mintzberg 1979 p. 224). Stakeholders imagine a leader who is proactive in seeing a shifting environment and responding through a superior decision making process, but as Manning (2013) observed these expectations are based in a cultural mythology and most leaders are quick to land on “a solution that is ‘good enough,’ one that satisfies sufficient parameters of the decision situation” (p. 119). Often these solutions do not lead to long term changes.

Structural Change

Attempting to change the structure of an organization is a challenge marked with notable failures. Harvard University, under the leadership of Larry Summers, and the BBC both attempted to restructure their organizations to be led by stronger centralized authority with less discretion available to members in lower levels of the hierarchy. Bolman and Deal (2013) note: “Restructuring worked about as well for Summers as it had for the BBC- he was forced out after the shortest term for a Harvard president in more than a century. Reorganizing, or restructuring, is a powerful but high-risk approach to improvement” (p. 70).  Examples of failed efforts to loosen centralized power and increase autonomy at lower levels also exist, as in the case study of McDonalds in the 1990’s (Bolman & Deal, 2013, p. 59).

Cultural Change

Cultural change can be as elusive as structural change; however, the failure to lead cultural change often carries more risk. Smith and Freyd (2014) document instances of sexual abuse in the military, churches, and university that were not properly addressed because the organizational culture was static. Several reasons were explored. First, “performance or reputation is valued or divorced from the well-being of members” (Smith & Freyd, 2014, p. 580). In these environments leaders are often guilty of “prioritizing damage control rather than addressing the underlying problem with abuse” (Smith & Freyd, 2014, p. 581).  Often stakeholders rely on a leader to change the culture but Bolman and Deal noted more often than not the culture changes the leader (2013, p. 84).  Johnson (2018) assess why real cultural change is an elusive goal: “Short run competitive thinking; however, makes that goal all but impossible to achieve because that kind of change is a long term project rooted in a sense of community and common purpose” (p. 65).

Internal Barriers, Communication, Flawed Decisions

Often internal barriers to change exist. People within the organization stymie change through various methods because “employees are concerned that what is good for the organization overall might not be what is best for them” (Levi, 2017, p. 87). Often employees possess knowledge and skills not held by their leaders (Manning, 2013, p. 120). In the case of Harvard, Summers found himself outmaneuvered by faculty members who ultimately blocked his efforts (Bolman & Deal, p. 80).

Organizational structure and communication also impede change. Leaders “with more complicated jobs are positioned near the top of the organization,” which can lead to isolation (Manning 2013, p. 114). At times, leaders who see changes and new people may even desire isolation and try to be alone (Lamar, 2012 ). The isolation leads to communication that is rarely “candid, open, or timely (Bolman & Deal, 2013, p. 31). Manning (2013) noted that technology has increased the speed and scope of communication within organizations (p. 118). This communication shift has created a potential to flatten organizational structures. Bolman and Deal (2013) highlighted Joyce Clifford’s success in improving Beth Israel Hospital through a flatter “web” as opposed to a “pyramid” (p. 90). However, successes such as Clifford’s are remarkable because they are exceptions, and as Manning (2013) argues “bureaucratic theorists advise against changing the structure to accommodate individual personalities” (p. 114).

There are times when flatter, group leadership is needed. “Teams are needed for tasks that are too complex for one individual to perform or problems too difficult for one individual to solve” (Levi 2017, p. 179). However, one danger in flatter, more democratic structures for leading change is that it exposes the organization to poor decision making processes. These structures can allow poor change strategies to move forward because group members fear damaging relationships. As Janis (2005) noted, attempts at group leadership can “bolster moral at the expense of critical thinking” (p. 185). Levi (2017) describes this exchange of cooperation for efficacy as the Abilene paradox. When a leadership team lacks the ability to challenge each other’s’ ideas, the organization’s path towards change will be rocky.

References

Bolman, Lee G. & Deal, Terrence E. (2013). Reframing Organizations. San Francisco: Jossey-Bass.

Janis, Irving L. (2005). Groupthink: The Desperate Drive for Consensus at Any Cost. In Shafritz, Jay M, Ott, J. Steven, & Jang, Yong, Suk. (Eds.), Classics of Organization Theory (pp. 185-192). Belmont: Answorth.

Johnson, Allen G. (2018). Privilege, Power, and Difference. New York: McGraw Hill

Lamar, Kendrick. (2012). Don’t Kill My Vibe. On Good Kid, M.A.A.D City. Los Angeles, Top Dawg.  

Levi, Daniel. (2017). Group Dynamics for Team. Los Angeles: Sage.

Manning, Kathleen. (2013). Organizational Theory in Higher Education. New York: Routledge.

Mintzberg, Henry. (1979). The Five Basic Parts of and Organization. In Shafritz, Jay M, Ott, J. Steven, & Jang, Yong, Suk. (Eds.), Classics of Organization Theory (pp. 185-192). Belmont: Answorth.

Smith, Carly Partnitzke, & Freyd, Jennifer J. (2014). Institutional Betrayal. American Psychologist, 69, pp-pp. 575-587.