November 6, 2001—

Disclosure of Data to Military Recruiters

On October 9, 2001 we received a response from the Department of Administration to our request for an advisory opinion regarding the release of student educational data under Minn. Stat. § 13.32, Subd. 5a pursuant to a request from a military recruiter. According to the opinion, the Commissioner concluded that school districts are obligated to respond to a request for data under Minn. Stat. § 13.32, Subd. 5a. The data that must be supplied about a student must meet all three of the following criteria to be released: (1) the school district has designated as "directory information" in its policy the name and/or address and/or phone numbers of students; (2) the parent has not requested the school district to restrict the release of "directory information" about the student, under 34 CFR § 99.37; and (3) the parent of the 11th or 12th grade student has not refused to release data to military recruiters under Minn. Stat. § 13.32, Subd. 5a.

The opinion, however, does not address how a school district responds to a request for the same information as "directory information." Such a request can get sticky where a parent has refused to allow access of public data to military recruiters under Minn. Stat. § 13.32, Subd. 5a but has not also restricted access to directory information under 34 CFR § 99.37. The dilemma occurs because State law prohibits government entities from requiring persons to identify themselves, state a reason for, or justify a request to gain access to public government data, unless specifically authorized by statute. See Minn. Stat. § 13.05, Subd. 12. While requiring a person to identify themselves as a recruiter in responding to a request under Minn. Stat. § 13.32, Subd. 5a is clearly authorized by statute, it is not clear whether such authorization extends to a request for "directory information." Consequently, it is arguable that a school district cannot inquire whether a particular request is being made by a military recruiter, but must respond appropriately by providing that information which has been designated by the school board as "directory information" in response to the request. If a parent has not advised the school district that the information designated as "directory information" be considered private regarding the parent's student, the information must be released. Thus, there is the potential for this information to be released to a military recruiter even though the parent has refused access to military recruiters.

Until further clarification can be obtained, it is suggested that school districts advise a parent who refuses access to military recruiters that unless the parent also requests that "directory information" about the student be private, the possibility exists that "directory information" about the student may be released to a military recruiter. MSBA Model Policy 515 has been updated recently to provide parents with such notice.

If you would like to review the opinion in its totality, it may be found at http://www.ipad.state.mn.us/ opinions/2001/index.html by clicking on opinion number 01-078.

Internet Protection Act Requires Certification of Compliance

New Rules Could Impact Eligibility for Federal Funding or E-Rates for School Districts That Are Not in Compliance

While Minnesota laws have required schools to implement "effective methods" to prevent Internet access to pornography and other inappropriate materials, Congress recently enacted federal legislation that makes the implementation of filtering or blocking devices mandatory in order for schools to qualify for reduced e-rates or to receive ESEA grants. In December 2000, Congress passed the Children's Internet Protection Act ("CIPA"). This law provides that schools that have computers with Internet access must have Internet safety policies and technology protection measures in place to preserve their eligibility to receive federal grants or funding under the Elementary and Secondary Education Act ("ESEA") and to preserve their eligibility to participate in the E-Rate Program. These new regulations took effect April 20, 2001.

School districts interested in participating in these federal programs must demonstrate that, after holding a public hearing, they have adopted a policy for Internet safety for minors and adults that includes the operation of a technology protection measure (filtering or blocking device) programed on computers with Internet access. This filter must protect against access to visual depictions that are obscene, contain child pornography, or are harmful to minors. The school district also must certify it is enforcing the operation of such technology protection measures during any use of such computers by minors and other users.

To participate, school districts should review their Internet policies and procedures to ensure incorporation of these requirements. MSBA Model Policy 524 has been updated recently to incorporate the CIPA requirements. Therefore, schools which have adopted and complied with this revised Policy will meet the CIPA requirements to obtain federal funding. Certifications must be made to the U.S. Department of Education for ESEA Funding and to the FCC for E-Rate Program funding and universal service benefits. Certification forms and applications for such funding may be obtained by contacting: www.sl.universalservice.org/form.

Checklist for CIPA Policy:

• Draft Internet policies that address efforts made by the school district to:
  
  (1) monitor the online activities of minors;
  
  (2) ensure the safety and security of minors when using e-mail, chat-room and other forms of direct electronic communication;
  
  (3) ensure no unauthorized access, including hacking and other unlawful activities by minors;
  
  (4) ensure no unauthorized disclosure, use or dissemination of personally identifiable information relating to minors; and
  
  (5) employ technology protection measures (filter systems) to restrict minors' access to harmful materials.
  
  
• Schedule at least one public hearing on the proposed Internet safety policy.
  
  
• File certification with CIPA on Form 486 no later than October 27, 2001.
  
  
• For e-rate discount, consortia organizations that are the "billed entity" must obtain Form 479 from each of their members prior to filing the CIPA certification.

EEOC Age Discrimination Charges

Here is what has occurred in relation to EEOC Director-initiated charges over the last few months:

POST-RETIREMENT HEALTH INSURANCE

EEOC Letters Regarding Post-Retirement Health Insurance

A July letter states the EEOC "will not institute a lawsuit in this case" and "no further action" will be taken on this charge.

• This letter was intended only for school districts that provided a contribution toward post-retirement health insurance until eligibility for Medicare. However, it was inadvertently also sent to school districts with problematic severance pay/early retirement plans. Consequently, school districts with issues in addition to post-retirement health insurance should not rely on this letter as a resolution of their case.

The EEOC rescinded its guidance regarding the application of the ADEA to post-retirement health insurance.

• The EEOC's new general counsel wants to look further into this issue with employer and employee groups.

The EEOC's July 18, 2001 letter indicated that "the Commission will not seek a change to early retirement incentive plans that offer extended health care coverage (generally in the form of a Medicare bridge)."

• This argument, that plans providing for contributions to post-retirement health insurance until eligibility for Medicare was tantamount to the Social Security bridge allowed for severance pay/early retirement plans, was one that we consistently made in responding to charges last year.
  
  
• According to Monty Johnson, EEOC Deputy Director, a school district that retains language providing for a Medicare bridge would probably not be at risk for further review by the EEOC.

SEVERANCE PAY/EARLY RETIREMENT PLANS

July 18, 2001 EEOC Letter

Indicates that the EEOC will conciliate a Director-initiated charge if the "school district agrees to come into compliance with the well-settled law relating to cash-based early retirement incentives."

• Consequently, the EEOC is no longer seeking damages, but only relief in the form of changing contract language so that it complies with the ADEA.

Two issues arise from this letter:

Examples of inappropriate incentives given include "severance, stipends, or cash payments for accrued but unused sick leave that are reduced or eliminated on the basis of age."

• According to the Deputy Director, this is not an exhaustive list.
  
  
• Deputy Director also indicated that EEOC's position is that a window-type plan is discriminatory.
  
  
• We disagree based on Second Circuit Court of Appeals decision in Auerbach v. Board of Education, 136 F.3d 104 (2nd Cir. 1998).
  
  
• In light of EEOC's opposite opinion, we have requested specific legal authority from the EEOC for its position. We are still awaiting a response. If the EEOC provides strong authority to support its position that window-type plans are discriminatory, we will advise you accordingly.

EEOC's letter also references a conciliation agreement reached with Education Minnesota.

• Education Minnesota has only agreed "to revise language in their collective bargaining agreements concerning early retirement incentive benefits to bring them into compliance with the ADEA."
  
  
• Noticeably absent is any requirement that Education Minnesota engage in good faith collective bargaining.
  
  
• Be prepared to receive proposal seeking 100% of benefit regardless of when individual retires.
  
  
• We recommend that school districts make their own proposals which comply with the ADEA and keep good written notes for the purpose of demonstrating negotiations history should further proceedings arise.

PETRI/KIND LEGISLATION, HR 2558

Introduced on July 18, 2001, the bill seeks to add exceptions to the ADEA for K–12 school district post-retirement health insurance and early retirement benefits.

Post-Retirement Health Insurance

Proposes that it would not be a violation for a school district to provide for post-retirement health insurance that is "altered, reduced or eliminated when the participant is eligible for [Medicare] . . . or an employee benefit plan maintained by a State or an agency thereof."

• If passed, would allow for a Medicare bridge.

Severance Pay/Early Retirement Plans

Proposes early retirement incentive plan that is exempt from coverage of ADEA where it provides "supplemental benefits."

• Bill envisions two components to severance pay/early retirement plans.
  
  
• A "general benefit" to all retirees who meet eligibility requirements.
  
  
• We are currently seeking clarification as to whether a 403(b) plan would qualify for this "general benefit."
  
  
• A "supplemental benefit" which could be subject to a declining benefit formula.

MSBAIT LAWSUIT AGAINST EEOC

Dismissed by Court on procedural grounds in August. We have no information as to whether it will be appealed.

CURRENT OPTIONS

Post-Retirement Health Insurance

If a school district has language providing for contributions to post-retirement health insurance until eligibility for Medicare, the school district may keep this language.

• School district may wish to take proactive approach and propose language that eliminates all potential ADEA issues.

Severance Pay/Early Retirement

Options exist for language that complies with the ADEA.

• Review language with school district's legal counsel.

We will continue to update you on these issues as developments arise. If you have any questions or wish to discuss any of the issues further, please do not hesitate to contact us.