• During the pandemic, COVID testing of employees may be permissible according to the EEOC, but the requirement to be tested may be a mandatory subject of bargaining under the Taylor Law. 
• SED does not permit districts to require parent/guardian consent for student COVID testing to participate in in-person learning, however, the local departments of health allow districts to require COVID tests to participate in interscholastic athletics. 
• Mandating employee vaccination, with medical and religious exemptions, is permitted by the EEOC but could be a mandatory subject of bargaining.  
• Increasing in-person learning should involve bringing back affected groups first (special ed, ELL, younger students). Check with district insurer and aim to get approval from a medical professional for mitigation measures before reducing social distancing to less than 6 feet. 

• There have been no waivers of the federal Individuals with Disabilities Act (IDEA) requirements during the pandemic.  
• The Governor’s prohibition on in-person instruction in spring 2020 compelled districts to provide services virtually. However, since the Governor’s prohibition has been lifted, districts not providing in-person services and instruction for special education students may be vulnerable to claims for non-compliance with IDEA. 
• Provision of compensatory services to remedy the district’s lack of appropriate services under a student’s Individual Education Plan (IEP) is not automatic but would be determined on a case-by-case basis, largely based on the student’s education progress and achievement during school closure or remote learning. 

• Revisions to Title IX regulations have significantly affected the process, and there is the potential for future revisions to the Title IX regulations as a new federal administration considers the process. 
• New regulations require a right to equal treatment (a grievance process that does not favor either the complainant or the respondent), a right to legal counsel at all stages of the proceeding, a right to objectivity and fairness (without bias or conflicts of interest). 
• The right to due process requires that the burden of proof rests with the district (not either party) and requires a preponderance of evidence to establish any allegation (i.e., it is more likely than not that an allegation is true). In addition, all parties have a right to an equal opportunity to present all relevant evidence and to review any evidence submitted, prior to the issuance of a final investigative report. 

• Students’ rights to free speech may be reasonably restricted as to the time, place and manner on school district property. On-campus speech is protected if it would not materially and substantially disrupt the educational process or would not impinge on the rights of others (from 1969 Tinker case). 
• The use of vulgar, indecent or plainly offensive speech in a school-sponsored activity could be restricted (from 1986 Fraser case). 
• A school-sponsored newspaper may be censored for legitimate educational reasons as the newspaper bears the imprimatur of the school district (from 1988 Hazelwood case). 
• The Mahanoy school district has appealed to the Supreme Court (B.L. v Mahanoy Area Sch. Dist.) to decide on whether restrictions on student speech from the Tinker case apply to off campus speech. School districts need guidance on online speech and advocates have argued for authorizing Districts to regulate cyberbullying and harassing online speech. Oral arguments before the Supreme Court are pending. 

• The starting point of diversity recruitment and retention efforts is to define diversity for your organization and set goals based on that definition. Protected categories from the Human Rights Law, Title VII, the ADA and the ADEA are good places to begin exploring what categories will be considered for your organization’s definition of diversity. 
• To learn more about the state of teacher diversity in NYS, look at Hofstra University’s study on Teacher Diversity in Long Island’s Public Schools and NYS Education Department’s Educator Diversity Report (summary slides are available from the NYSED Briefing on Draft Report).  
• Board policies can be structured to support diversity, equity and inclusion (DEI), including DEI sample policies from NYSSBA. 
• Recommendations for hiring strategies are supplemented by recommendations for inclusion and retention of minority staff like proposals in an article by Education Next.