New OCR Guidance on Artificial Intelligence

New OCR Guidance on Artificial Intelligence

by | Nov 22, 2024 | General, Student Education and Discipline

The United States Department of Education Office for Civil Rights (OCR) recently issued a resource providing examples of how the use of artificial intelligence (AI) in educational or security software could result in discrimination on the basis of disability, race, or sex.

The guidance titled  “Avoiding the Discriminatory Use of Artificial Intelligence” is available here.

The guidance uses twenty-one (21)  examples of the use of AI in schools and how it may have discriminatory outcomes which could cause OCR to investigate upon receiving a complaint.  It specifically addresses the use of AI to write 504 plans or IEPs and also how the use of security software may have discriminatory impacts.  All of the examples indicate that OCR might open an investigation, but also notes that the decision to do so would be based on the individual facts and circumstances of each case.  It is also important to note this guidance does not have the force of law and does not create new legal standards.

The resource includes examples shedding light on how OCR views some of the new uses for AI in the educational setting and potentially what educational leaders should be aware of in evaluating vendors offering AI-based educational or security products.

For instance, the resource includes an example involving the use of AI products designed to flag plagiarism or prevent cheating.  According to OCR, the AI products have a low error rate for evaluating essays written by native English speakers, but a high error rate when evaluating essays written by non-native English speakers.  might evaluate non-native English speakers.  According to the resource, “OCR would likely have reason to open an investigation if a person filed a complaint based on these facts.”

Another example involves potential harassment on the basis of race.  In this scenario.  an AI security vendor used facial recognition technology, that has issues with identifying Black individuals. The facial recognition technology could result in disparate treatment based on race in violation of Title VI, if students are misidentified and questioned or pulled from class as a result of the faulty software.

Yet another example surrounded the use of risk assessment software utilizing historic discipline data (which may present disparities in discipline based on race) to score student’s risk of future discipline issues and recommend discipline.  The use of a “risk score” based on data, even if the data does not include student race, may still recommend more severe discipline outcomes for students of color, and may result in different treatment based on race.

One more example involved using AI software to create academic schedules for students.  The software relies upon historical data and student demographics to determine course enrollments.  The use of such software could result in treating students differently on the basis of sex.   OCR would have reason to open an investigation under these facts.

The above examples frequently mention that when complaints are made, the school district does not investigate or act, instead completely relying upon the software.  This reinforces the need for school districts to act upon complaints, conduct an adequate investigation, and take remedial action if necessary.

These examples should be reviewed and discussed as AI software is being considered for implementation.  OCR is clearly signaling that it expects schools to evaluate the potential discriminatory impact of the use of this evolving technology in the school setting.

 

 

Federal Judge Blocks FLSA Final Rule

Federal Judge Blocks FLSA Final Rule

by | Nov 22, 2024 | General, Legislation, School Management

A new Fair Labor Standards Act (FLSA) Rule took effect July 1, 2024, which significantly increased the salary minimum that non-teaching, salaried supervisors and administrators must make to be considered exempt from overtime pay.   

On November 15, 2024, a judge in the U.S. District Court for the Eastern District of Texas issued a nationwide injunction preventing the Department of Labor from implementing the new rule in its entirety.  The court reasoned that the Department of Labor exceeded its authority and effectively displaced the “duties test” in the law.  As a result of the ruling, the entire new rule, including the July 1 salary increase is no longer in effect, and the upcoming January 1 increase to the salary minimum will not take effect. 

The court stated, “… the Department’s 2024 Rule contemplates sweeping changes to the … regulatory framework, designed on their face to effectively displace the FLSA’s duties test with a predominate – if not exclusive – salary-level test,”  Continuing, the court concluded, The Department simply does not have the authority to effectively displace the duties test with such a predominant salary-level test.” (State of Texas v. Dept. of Labor, E.D. Tex. No.4:24-CV-499)

The Department of Justice could appeal the ruling, and the Fifth Circuit Court of Appeals or the United States Supreme Court could lift the injunction and reinstate the rule.  Due to the changing administration, it is likely that even if an appeal were filed, it could be withdrawn. 

It is interesting to note that very similar circumstances occurred in 2016 when the same federal district court in Texas blocked another DOL rule raising the minimum salary for the executive, administrative professional (EAP) exemption.

 What this means for your district:

The ruling means the minimum salary threshold for meeting the executive, administrative, or professional (EAP) exemption will remain as it was prior to the new rule taking effect: $684 a week (or $35,568 annually) for the EAP exemption and $107,732 for the highly compensated employee exemption.

If districts were planning to raise the salaries for nonteaching, salaried supervisors and administrators to ensure the salary basis test was met for purposes of the EAP exemption, there is currently no need to implement those changes.  If salary increases had already been given, if reductions were contemplated, they would need to be part of a uniform plan affecting the entire district.  If you have specific questions about how the EAP exemptions might apply or how the ruling affects a specific situation, please contact counsel. 

 

 

Special Education Update: 6th Circuit Rules Student Not Entitled to Stay Put Injunction

Special Education Update: 6th Circuit Rules Student Not Entitled to Stay Put Injunction

by | Sep 23, 2024 | General, School Management

“Stay put” is a procedural safeguard that provides that a student will remain in the “then-current” educational placement while a due process complaint is pending.

In a recently decided case, parents challenged a proposed IEP in 2023 for their student who was reenrolling in public school after a period of four years. They sought a stay put injunction pursuant to an IEP developed in 2019, the last time the child had attended public school. (J.L. v. Williamson County Tennessee Board of Education (124 LRP 29201).

The 14 year-old student had both ADHD and disruptive mood dysregulation disorder, and an IEP was developed for them. In 2019, the student was in 4th grade and placement at the time was in both regular and special education classrooms with behavioral supports to accompany them when with non-disabled peers.

The student’s behaviors included eloping, verbal and physical aggressive outbursts, and throwing furniture and other items. During 2019, when the behaviors escalated, the IEP team proposed changing the student’s placement to a therapeutic classroom to provide wraparound support with a goal of resuming a less restrictive setting if successful.

Parents disagreed with the proposed IEP and filed for due process, and stay put was implemented. During that time, the Board also filed for due process when behaviors escalated, seeking immediate removal due to the substantial likelihood they would injure either self or others.

The parents and district settled the stay put issue part of the due process in 2020, with the parents agreeing to three hours per week of homebound instruction. The parents then moved the student to a private school and settled the pending due process. The agreement provided that the private school would not be the stay put placement and that the district would reimburse the parents for expenses for attendance at the private school.

The private school was unable to manage the student’s behaviors and parents homeschooled the student for the 2021-22 school year. A second due process also was settled. Upon returning to public school, the parents again disagreed and filed a third due process complaint, alleging the district was denying the student a FAPE in the least restrictive environment.

At the third due process hearing, the hearing officer found in favor of the Board, also finding that the student was in elementary school when they left public school and now would be attending middle school. Because of the gap in public school enrollment and the fact that the parents had unilaterally removed to a private school, the hearing officer found that stay put placement rights were waived.

The parents appealed and filed for an injunction to enforce their stay put rights, which would require the student to be placed in a regular education classroom with peers. The district court denied the injunction and the parents appealed, again requesting an injunction to order the stay put placement.

The 6th Circuit Court of Appeals determined that stay put requires the child be maintained in the child’s “then-current educational placement.” The statute does not define “then-current educational placement.” The court reviewed other circuit court decisions and the legislative history, and determined that three factors are important in resolving stay put disputes.

First, the placement has to be agreed-upon (i.e. not unilateral). Second, the placement set forth in the last-implemented IEP is relevant but not dispositive. Third, timing is critical. On the third factor, the 6th Circuit panel noted that some courts define the timing of determining the stay put placement as the time when due process is filed while others refer to the last agreed-upon placement before the dispute arose.

The court determined that there was no agreed-upon placement for the student to remain in because the parents had unilaterally removed him from the agreed-upon homeschool placement to a private school in the first settled due process. The last agreed-upon placement was homeschool, and prior to that, the 2019 IEP general education setting was not a current placement at the time of filing the due process. No stay put rights were created by any court or hearing officer because the previous due process cases had been settled.

Therefore, “preserving the status quo” was difficult because there was no status quo to preserve. The student had been in three unilateral private placements since 2020. The 2019 IEP was not a “then-current” placement and was not a functioning IEP when the dispute arose, and it was also not “the last agreed-upon placement.”

The court held the parents were not entitled to an injunction providing that the stay-put placement was the 2019 IEP placement because the student had no “then-current educational placement” in which they could “remain.” The court noted that the issue here was not whether the parents had forfeited stay put rights. Rather, because of the prolonged gap in IEP services due to multiple unilateral placements by the parents, there was no stay put to begin with.

What this means for your district:

While the fact pattern in this case – multiple unilateral placements and a years-long gap in public school enrollment – should be fairly rare, some aspects of the court’s reasoning could apply more broadly. This case clarifies that a school district is not obligated to maintain a student’s previous IEP placement if the student has been withdrawn from the district for an extended period and has undergone multiple unilateral placements by the parents. ​ The purpose of IDEA’s stay-put provision is to preserve the status quo. ​ Consequently, if a student has not been continuously enrolled in the public school system and the last agreed-upon IEP has expired, the district possibly may not be required to revert to that placement. ​

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

Special Education Update: 1st Ten Days of Suspension Without IEP Services Does Not Deny FAPE….Right?

by | Aug 18, 2024 | Special Education, Student Education and Discipline

Student discipline for students with disabilities on an IEP is generally understood to allow ten days of suspension without a need to provide services.  In a recent case, a state level review officer in Ohio considered whether a failure to provide services within that ten day period might constitute a denial of FAPE.

In the case, a parent had filed for due process alleging that the student required a one on one aide for the student, the student had been bullied, the IEP was not being followed, the student was not being allowed to attend specials, was being graded unfairly, and that the school was denying the parent access to ClassDojo.  Additionally, the parent alleged that the student was not provided with services during a recent  six-day suspension.  The parent requested compensatory education, home instruction or tutoring.  The parent was pro se; i.e., representing themself.

 The impartial hearing officer considered three issues: whether the parent was provided with procedural safeguards, whether the IEP was implemented appropriately, and whether bullying prevented the student from receiving a FAPE. 

The hearing officer found the district did develop and implement an IEP appropriate for the student to receive a FAPE and that bullying had not prevented the student from receiving a FAPE (in fact, there was no evidence presented about bullying in the hearing.). However, the IHO found that the student was denied FAPE and entitled to six hours of compensatory education in the form of home instruction or tutoring for the six days the student was suspended and did not receive services in the IEP. 

Both the district and the parent appealed the IHO’s decision.  The school district argued that the law does not require provision of compensatory education during the first ten days of suspension, relying on the IDEA provision requiring that a student who is suspended for more than ten days in a school year receive services (20 USC Sec. 1415(k)(1)(B), 35 CFR 300.530-300). The district also argued that it did offer services for the six days of suspension and the parent refused those services.

The SLRO considered the issues, including the length of the suspension.  In doing so, the  SLRO, found this, “…does not necessarily mean that there cannot be circumstances in which a student who is suspended less than ten (10) days is denied a FAPE. I do not find the statute to mean that a FAPE is never denied unless the suspension is at least ten (10) days.”

In applying this interpretation to the facts, however, the SLRO reversed the IHO determination, finding that because the district had offered services during the suspension and the parent refused, he would not order them to provide it now.  Additionally, parent had offered no evidence that the suspension denied FAPE on the facts of the case.  The SLRO also affirmed on the other issues, including that the IEP was appropriate and enabling him to make progress in the least restrictive environment and denied the parent’s appeal. 

 What this means for schools:  While this decision may be fact specific, Districts and IEP teams should carefully consider the full impact of a denial of services even for short- term removals.

FLSA Final Rule Changes Salary Threshold

FLSA Final Rule Changes Salary Threshold

by | May 23, 2024 | Labor and Employment, School Finance

In April 2024, The Department of Labor (DOL) announced a Final Rule increasing the threshold level salary minimum for the “salary test”.  (See the DOL document entitled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees).

Generally, under the FLSA, employees are exempt from minimum wage and overtime protections if they are employed in an executive, administrative, or professional capacity (EAP) and meet three tests set out by the department which include payment of a specified weekly salary level and performing executive, administrative, or professional duties.

The new rule takes effect on July 1, 2024. On that date, the new salary amount threshold for a nonteaching, salaried supervisor or administrator increases to $844 week/$43,888 annual salary (up from $684 week/$35,568/annual salary.)

Then, in January 2025, the method used to calculate the salary will change again- and the amounts will increase a second time to $1,128week/ $58,656 annual salary.  After that, the salary threshold will be raised every three years after July 1, 2027. 

Whether an employee can be exempted from the payment of overtime by meeting the EAP exception depends upon meeting the “salary and duties tests” set out by the Department of Labor in the law. 

To be eligible for the exemption, the employee 1.) must earn a fixed salary, 2.) that salary is at least equal to the amount in the Final Rule, and 3.) that the employee performs functions that meet the executive, administrative, or professional duties as defined by the DOL. 

The salary amount will increase twice- on July 1, 2024, and then again in January 2025.  Due to that increase, some nonteaching administrative employees’ salaries may likely be lower than the new salary threshold amount. 

The “duties” part of the test must then be applied to the employee’s job duties to determine whether a nonteaching administrator/supervisor is exempt from overtime requirements.

Administrative employees will meet the duties test if they primarily perform office or non-manual work directly related to the operations of the school district.  Their duties must involve the exercise of discretion and independent judgment on matters of significance.

Executive employees are also eligible for the exemption. To meet the “duties test” for these employees means that their primary duty must be managing a particular department or division of school operations.  They must regularly direct the work of at least two full-time (or their equivalent) employees and must have the authority to hire and fire, or have their recommendations for promotion, termination, hiring, or other actions given particular weight.

Teachers are specifically exempt from the FLSA overtime rules as professionals, so this rule change will not affect certificated administrators. 

For highly compensated employees subject to the FLSA, the salary threshold is going up to $132,964 on July 1, 2024, and then up to $151.164.  It is likely some employees formerly covered by this exception may no longer meet the salary threshold.   Even if those employees still meet the requirements for exemption under the highly compensated employee test, the salary threshold to be eligible for the exemption must be met.  If this is no longer the case due to the increases planned to the salary threshold, it is well possible these employees could qualify using the EAP exception. 

Actions to take now:

Survey the salaries of nonteaching administrative employees to determine if any might fall below the new salary thresholds.  Employees that may be affected by this change include supervisors and directors such as technology directors, transportation and cafeteria supervisors, facilities managers, and other similar positions.

If the new salary threshold exceeds a nonteaching administrative employee’s current annual salary, school districts may need to adjust upwards or recognize these employees are eligible for overtime pay.  This means the employees would need to keep track of their time.  Consult with Ennis Britton to review specific situations.