How Key Federal Budget Proposals May Affect Independent Schools

The machinations surrounding funding the federal government for fiscal 2018 are (almost) over, and now the release of the president’s budget proposal for next year starts debate for fiscal 2019. While many Washington pundits say the president’s budget is “dead on arrival,” it should still be viewed as a messaging document outlining White House priorities.

Here are some key proposals that may affect independent schools if adopted:
  • U.S. Department of Education: Following in the footsteps of last year’s proposal, the president proposes eliminating the Title II, Part A (funding for professional development) and Title IV, Part A (funding for technology, mental health/student safety, and education enrichment activities) programs. Both of these programs allow private school educator and student participation. The president also proposed a new $1 billion school choice initiative with two components: 1) a competitive grant program where school districts could apply for funds to start or expand open-enrollment programs, and 2) a competitive grant program where states or nonprofits could apply for funds to expand private school choice programs.
  • U.S. Department of Labor: Like last year, the president proposes establishing a paid parental leave program that would provide six weeks of leave funded in some way through the unemployment insurance system.
  • U.S. Department of Homeland Security: Similar to last year, the president proposes increasing immigration and workplace enforcement, including nearly $131 million to support E-Verify, which the administration hopes to make permanent.
Last year, these proposals — particularly those centered on the Department of Education — received little support in Congress. The next few months will show if this year is any different.

Short-Term, Limited-Duration, Insurance Proposal

Last fall, NAIS sent a letter to the U.S. Department of Health and Human Services (HHS) regarding a rule change that limited the availability of health insurance primarily for low-income kids on full scholarships attending boarding schools. This week, HHS (along with two other agencies) issued a proposed rule that would allow short-term insurance plans to last up to 12 months. This would allow schools to continue offering longer plans to students who do not have sufficient coverage through other means. Comments on this proposal are due April 23, 2018. NAIS expects to file comments focused on the student health insurance access issue and will provide guidance on how interested schools can get involved.

Tweaks in the Works for the Americans with Disabilities Act (ADA)

In an effort to address an uptick in lawsuits for failure to remove architectural barriers, the U.S. House of Representatives has passed an amendment to the ADA that will provide places of public accommodations, such as independent schools, an opportunity to alter physical barriers before a lawsuit is filed. This amendment may help independent schools. NAIS will track this issue as it progresses.

U.S. Supreme Court May Address ADA Leave Issue

In 2016, the U.S. Equal Employment Opportunity Commission (EEOC) adopted guidance that requires case-by-case consideration of additional requests beyond Family and Medical Leave Act (FMLA) leave as a potential “reasonable accommodation” under the ADA. This effectively means that an employee who exhausts FMLA leave may request — and potentially have a legal right to — additional unpaid, protected leave under the ADA. This guidance has triggered lawsuits resulting in two court of appeals decisions that are being appealed to the Supreme Court. Both cases found that the employees did not have a right to the additional protected leave, despite the EEOC guidance. The Supreme Court may review either or both cases in the upcoming term. In the meantime, schools should be aware of this issue and tread carefully when individuals request additional leave after they exhaust FMLA leave.  

Question from the Field

The cost of maintaining our playing fields seems to grow every year. We also worry about the chemicals that we add to the fields to keep them playable. We are considering synthetic fields. However, now we have parents concerned that synthetic fields are even more dangerous than regular fields. What should we know as we research this topic?

Over the years, the safety of synthetic fields has generated much debate and many studies. The U.S. Environmental Protection Agency (EPA) is currently conducting a study on the topic in an attempt to address some of these concerns once and for all. The kind of liability schools are concerned with in this area is largely one of negligence. This means that schools are expected to perform their due diligence and take reasonable steps to be aware and informed about the potential risks associated with the issue. Schools should understand what kinds of fields are available, their relative risks, and the continued concerns that might arise after installation. For example, one study from the U.S. Centers for Disease Control and Prevention suggests that as fields age and break down, some of them might have slightly higher lead exposure levels. New York has a helpful summary, and the European Chemicals Agency has an extremely thorough report based on its research and literature reviews. As with other reports, the European report clearly states that it found no reason to discourage use of synthetic fields. It also acknowledges that research continues to evolve in this area and makes recommendations to address remaining concerns. Schools considering synthetic turf, or those that have already installed such fields, should continue to monitor findings as further studies are released. Schools should do their due diligence in this area as they move forward.

Legal News You Can Use

Guns on Campus: In the wake of yet another school shooting, your school leadership may wonder what — if anything — the law says about K-12 schools and guns on campus (including concealed carry). The law differs state by state. Check here for more information on what private schools are required and allowed to do in your area.

The Google Memo: The National Labor Relations Board (NLRB) rejected the claims of a former Google engineer that he was fired in violation of his legal right to speak out on working conditions. The terminated employee infamously drafted a memo arguing that women were not “biologically suited” for certain jobs while criticizing the company’s diversity efforts. The NLRB general counsel stated that while parts of the memo may have contained protected speech, the focus on gender stereotypes was “so harmful, discriminatory, and disruptive as to be unprotected” and that employers may indeed act to cut off conduct that could lead to a hostile workplace rather than wait for such a situation to develop into a larger workplace issue.

H-1B Visa Deadline Approaching: Schools seeking to hire new H1-B employees for the 2018-19 school year should have their applications ready on April 1. As usual, the government expects that applications will exceed the annual visa cap and a lottery will be conducted. Unlike institutions of higher education, K-12 schools are not exempt from this cap. Additionally, unless the visa recipient is eligible for some type of transition status, they may not begin work until October 1.

How Not to Investigate Sexual Harassment: A new lawsuit filed by the New York attorney general outlines many mistakes made by the Weinstein Company, including failure to investigate complaints of harassment, failure to treat complaints as confidential, and retaliating against complaining employees. Read this article for ways to properly handle harassment complaints in the workplace.
Debra Wilson
Debra Wilson

Debra P. Wilson is NAIS General Counsel. 

Whitney Silverman
Whitney Silverman

Whitney Silverman is the staff attorney for NAIS.


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