Reviewing your school's student and employee handbooks on a regular basis is an invaluable practice for ensuring that these documents accurately reflect the school's expectations, values, and procedures, as well as ensuring that they address any recent developments in the law. On a regular basis, independent schools should reflect on their current policies and procedures as stated in their handbooks, analyze which policies still function well and which do not, and update the handbooks so that they reflect the school's current practices. This way, employees and community members can have a clear understanding of the school's expectations for the coming school year.
Below, we have summarized a number of important developments that independent schools should consider in reviewing their handbooks:
Student Handbook Updates
Appropriate Interactions Between Adults and Students
A key component of carrying out an independent school's responsibility to ensure the safety and well-being of the students in their care is to set and enforce appropriate boundaries between students and adults working at the school. And despite the heavy focus that schools place on preventing child sexual abuse—by implementing written policies and procedures, conducting thorough background checks, and training employees on appropriate boundaries and reporting suspected child abuse—incidents involving inappropriate conduct with students still crop up each year.
One of the most effective strategies for preventing child sexual abuse is identifying and intervening early on when conduct occurs that crosses boundaries. Grooming behaviors, such as demonstrating favoritism, giving a student gifts, sharing details about one's personal life to a student, and soliciting information regarding the student's personal life, are the most reliable indicators of an individual's propensity to engage in serious acts of child sexual misconduct. Unfortunately, despite schools' best efforts to implement policies, procedures, and trainings to prevent boundary-crossing behavior, such behavior, when it does occur, is not reported to the school until it is too late.
To ensure that the school is notified of all allegations of boundary-crossing behavior, independent schools must create a culture of reporting, so that every member of the school community is able to recognize boundary-crossing behavior and report it to the school. To that end, it is imperative that schools include in their student and family handbooks a policy that describes the school's expectations for appropriate interactions between adults and students and provide examples of boundary-crossing behavior. The policy should also set the expectation that families will partner with the school to identify and report when boundary-crossing behavior occurs.
Finally, this policy should also describe the school's expectations for students and their families to similarly observe appropriate boundaries with school employees. For example, the policy should prohibit students from connecting with or following school employees on social media and should also prohibit students from texting with school employees on their personal mobile devices. Likewise, independent schools should strongly consider imposing prohibitions on families hiring school employees to perform services in their homes, such as babysitting, tutoring, house-sitting, or pet-sitting.
Student Behavioral Issues and Discipline
Independent schools have continued to face an increase in student behavioral and interpersonal issues this year, including bullying and harassment, cyberbullying, cheating, and student-on-student sexual misconduct. Many schools are also receiving reports of alleged student-on-student misconduct that occurred years ago, causing these schools to struggle to determine how to appropriately respond to these issues.
Having in place a clear set of behavioral expectations and disciplinary procedures will be an invaluable resource as schools continue to navigate these issues, and schools would be wise to review and update these policies as necessary as they prepare for the coming school year. When reviewing their behavioral expectations and disciplinary procedures, schools should pay special attention to the following issues:
Jurisdiction: Does the student handbook specify the circumstances under which the school's behavioral expectations and disciplinary procedures apply? Schools should consider whether, and to what extent, the school will investigate student misconduct that occurs off-campus and outside school hours. These policies should also reinforce that the school's behavioral expectations apply to students' online conduct, both on school-related platforms and on personal social media pages, as well as to students' conduct while on field trips and other school-sponsored travel.
Prohibited Conduct: The school's behavioral expectations should include a non-exhaustive list of prohibited conduct, such as bullying, harassment, hazing, sexual misconduct, plagiarism, and substance use. Schools should reflect on incidents that occurred during the past year and update their behavioral expectations accordingly if their existing policies fell short in addressing such incidents. Behavioral expectations should also be updated to address new issues, such as the use of ChatGPT or other AI tools to complete schoolwork.
Disciplinary Procedures: The student handbook should also contain disciplinary procedures describing generally the school's process for responding to instances of student misconduct, as well as a non-exhaustive range of possible consequences for violations of the school's behavioral expectations. Disciplinary procedures should not be one-size-fits-all but should be drafted in a manner to preserve the school's discretion in tailoring its investigation process and determining appropriate discipline based on the individual facts and circumstances of each incident. Finally, schools should consider whether they will report certain disciplinary actions to other schools, colleges, and/or universities. If it is the school's practice to report disciplinary actions to other schools, then this should be addressed in the student handbook.
Revisiting and Revising COVID-Era Policies
When reviewing their student handbooks, independent schools should revisit any remaining policies adopted to address the COVID-19 pandemic. Some policies, such as the COVID-19 health protocols, may be repurposed to apply more generally. For example, health protocols adopted during the pandemic could be updated and broadened to address the school's protocols for all types of common communicable diseases. Additionally, a distance-learning policy adopted while schools were operating remotely could be utilized again to allow students to attend class virtually during unforeseen school closures due to inclement weather or other emergencies.
Conversely, COVID-19-era policies that no longer serve a purpose should be removed. Of particular note: since the vast majority of independent schools that previously accepted Paycheck Protection Program loans have had their loans repaid or forgiven, they are no longer required to comply with Title IX of the Education Amendments Act of 1972 ("Title IX"). Therefore, schools that adopted Title IX-compliant sex-based misconduct policies during the pandemic should immediately remove such policies from their handbooks and revert to their previous sexual harassment policies, if they have not already done so.
Employee Handbook Updates
Appropriate Interactions Between Adults and Students
In conjunction with the updates to the student handbook addressing appropriate interactions between adults and students, schools should take the opportunity to review their employee boundaries policy as well. The employee-facing policy should contain a list of specific expectations for employees' interactions with students, with examples, as well as a clear description of prohibited conduct. Given the ever-increasing use of social media in our daily lives, the employee-facing boundaries policy should be updated to prohibit connecting or communicating with student via their social media accounts, email, or texting.
This time of year, many independent schools are planning for their annual mandatory reporting and training for employees on appropriate boundaries. Any updates to the school's boundaries policy should be specifically addressed in this training session to ensure that employees fully understand the school's expectations.
Given the recent increased pro-employee activity from the National Labor Relations Board (NLRB), independent schools should review their existing handbook policies to address employees' rights under the National Labor Relations Act (NLRA), which covers most employers, including independent schools, regardless of union presence. Schools should review workplace conduct policies, policies limiting the use of personal electronic devices or school-issued devices, employee social media policies, confidentiality policies, non-disparagement policies, or other policies that restrict workplace communications to ensure that they do not interfere with employees' rights under Section 7 of the NLRA.
Following the COVID-19 pandemic, independent schools are increasingly responding to requests for extended leaves of absences due to employees' medical concerns. To be able to properly address such requests, schools should review their current leave policies, including sick leave, personal leave, FMLA leave, state leave laws, and discretionary leaves of absence, to better understand employees' eligibility for extended leave under the school's various policies, how the policies interact, and how to properly administer such leave. Additionally, schools should update their leave policies, if necessary, to comply with developments in applicable state leave laws.
In an attempt to provide some relief to employees on extended medical leaves, some schools have updated their sick leave policies to allow for the rollover of unused sick leave from year to year. Other schools have even implemented sick leave banks, which allow employees to contribute their unused sick leave for another employee's use if they have otherwise exhausted all of their paid leave. Such policies are entirely optional but can be a thoughtful approach to help with employee retention and morale as employees recover from extended illness.
Addressing Social and Political Division
As schools update their employee handbooks, it is important to be cognizant of the increasingly divisive social and political climate in the United States. As the 2024 presidential election cycle is about to begin, schools should expect that they will need to address issues involving the expression of a wide range of political views and beliefs and the inevitable interpersonal conflicts that will follow. Schools may consider including language in their employee handbooks that sets clear expectations for employees to maintain appropriate professional boundaries in their interactions with colleagues and to remind employees not to let their personal views create disruption at the school. In a similar vein, faculty should be reminded of their role as educators and that they should endeavor not to impose their own political and social views on students.
Finally, independent schools, as 501(c)(3) nonprofit entities, are prohibited from engaging in partisan political activity, either directly or indirectly. Accordingly, employees who purport to speak on behalf of the school may jeopardize the school's 501(c)(3) status if they advocate for or against a particular candidate for elected office or use school resources to do so. Accordingly, schools that have a particularly politically active staff may consider implementing a policy on employees' political activity ahead of the upcoming election to provide employees with clear guidelines regarding their participation in partisan political activities.
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.
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, or Ashley E. Sykes.