Spring has arrived, which means that it is time for independent schools to consider updating their employee and parent-student handbooks for the 2022-2023 school year. As many schools experienced a surge of conduct, mental health, and behavioral issues with regard to students as the pandemic drew on, schools would be wise to pay particular attention to their harassment, mental health, and conduct policies to ensure they are consistent with the school's current practices, and with any applicable federal, state, and local laws. Below are some key issues that independent schools should consider in reviewing their handbooks.
Mental Health: Following several years of uncertainty, remote learning, and limited ability to socialize normally due to the COVID-19 pandemic, combined with global unrest, schools are noticing an increasing number of student mental health challenges and behavioral issues. When behavioral or academic issues present themselves, it is important to understand whether mental health may be a contributing factor. If such is the case, independent schools may want to require the student to be assessed and/or may want to collaborate and share information with outside providers. Accordingly, independent schools may want to consider including language in their handbooks authorizing the school to speak with a student's healthcare providers when necessary and to obtain information regarding student mental health. Such language should emphasize the importance of the parent-school partnership and establish clear expectations for parent collaboration and cooperation. Schools may want to set the expectation of confidentiality around student health information, ensuring that parents understand such information may be shared with those who have a need to know.
In conjunction with this policy, schools should also have parental authorization forms on hand to obtain permission for school counselors and other appropriate personnel to communicate with a student's outside healthcare providers and to obtain medical records, treatment plans, and such other information.
In addition, independent schools would be wise to outline the role and duties of the school counselor, and, specifically, should address the kinds of information the school counselor may keep confidential, and the kinds they may not. Having a clear policy about the school counselor's role will avoid misunderstandings among all involved.
Parent Conduct: Independent schools have long understood the importance of parental cooperation to help facilitate and support the school's mission, goals, and curriculum. Most schools already require parents to acknowledge their obligation to cooperate with the school when they sign their child's annual enrollment agreement. During the past two years, however, parents have been more vocal and divisive than ever in expressing their discontent with such issues as COVID-19 vaccine mandates, masking policies, and diversity, equity, inclusion and belonging initiatives. Consequently, independent schools may want to consider establishing a written policy – in addition to any contract language - in their parent/student handbooks setting forth expectations for parent engagement with the school. Such a policy should clearly state what the school considers to be acceptable conduct for parents and the consequences for conduct that is inconsistent with the school's expectations. It would be wise to also include guidelines for parents' use of electronic communications, such as the school directory and social media. Any online conduct or email communications are similarly subject to this policy.
Student Sexual Misconduct Allegations: Addressing student-on-student sexual misconduct continues to present challenges for independent schools. Although Title IX imposes a clear legal obligation on schools that receive federal financial assistance to investigate such allegations, most independent schools that were previously covered by Title IX by accepting Paycheck Protection Program (PPP) loans have had those loans forgiven and the resultant legal obligations removed.
Schools would be wise to examine their existing student sexual misconduct policies to determine whether and when the policy is triggered. For example, does the policy require the school to investigate claims of inappropriate conduct that allegedly occurred between students when off campus? Does the policy require the school to investigate claims of inappropriate conduct occurring in the context of a teenage relationship? Schools may want to consider when the school should intervene in such circumstances, and ensure their policies are reflective of the school's position. Some factors to consider include whether applicable state law imposes a legal duty of care to intervene and whether the school currently governs misconduct occurring off campus.
Special Note on Title IX: As discussed above, independent schools that have had their PPP loans repaid or forgiven are no longer required to comply with federal non-discrimination obligations, including Title IX. Schools that previously adopted Title IX policies following acceptance of a PPP loan should confirm that the loan has been forgiven and should ensure that language in their handbooks that address these federal non-discrimination obligations, especially any Title IX policies, have been removed.
Federal, State and Local Law Updates: Finally, any handbook update should include a careful review of federal, state, and local laws that may now be applicable or that have been amended. For example, a number of jurisdictions have passed updates to their paid sick leave and paid family leave laws; minimum wage, medical, and recreational marijuana laws; and other employee-facing policies.
Similarly, most states have relaxed or otherwise updated their COVID-19 health and safety requirements, including repeals of mask mandates and leave laws. It is important to understand whether state or local law continues to require schools to offer paid leave for COVID-19-related reasons, and whether, in the absence of an affirmative legal obligation, a school will continue to do so.
The Venable Independent School Law team is available to assist schools in navigating the above issues. If you have any questions please contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, Ashley E. Sykes, or Imani T. Menard.