COVID-19 Guidance

COVID-19 Guidance from KBS Law Group

Many districts are considering a shift to virtual learning environments due to the COVID-19 pandemic, which has brought about many questions surrounding the posting of copyrighted works on distance learning platforms.

The Copyright Act, the Fair Use Doctrine, and the TEACH Act of 2002 all have implications in the posting of copyrighted materials in virtual settings. To mitigate the potential exposure to liability on copyright infringement allegations and strengthen your district's claim to fair use of copyrighted works in distance learning, consider the following best practices:

Post excerpts of read-aloud books and videos rather than the full work;
Consider using books from publishers who have given advance permission to use their materials in light of the COVID-19 pandemic;
Ensure that works are posted on a password-protected platform that limits downloading and further distribution beyond the students enrolled in the particular class;
Direct students and teachers to your district's relevant intellectual property and acceptable use policies;
Ensure that the materials will be provided at the teacher's direction during the relevant lesson as part of the particular class' normal coursework and are directly related and of material assistance to the lesson content; and
Evaluate whether the copyrighted works are already subject to a license agreement between the district and the copyright holder/vendor and consider whether the license agreement would allow the district post the works on a virtual learning platform.

Please feel free to contact us if you have particular questions or would like more detailed guidance regarding this novel issue.

Governor Abbott Signs Proclamation Allowing School Districts to Postpone Trustee Elections to November 2020

If your district has ordered a trustee election for May 2, 2020, Governor Abbott has authorized your district's board of trustees to take action to postpone that election to the November 3, 2020 general election date. Election Advisory 2020-12 outlines the steps required to postpone your trustee election. Please do not hesitate to contact us for assistance drafting Agenda language, preparing the Order, or in deciding generally whether to take advantage of the op portunity to postpone your trustee election to November 2020.

Special Education Guidance and FAQs

As the COVID-19 pandemic continues to present challenges to school districts in educating students, we are here to help our clients navigate the issues that arise, including issues surrounding the education of special populations.

Based on questions and feedback we have received from our clients responsive to both federal and state guidance , we have developed a set of FAQs regarding the provision of services to students receiving special education or Section 504 services during extended school closures.

While the FAQs address specific issues, the following are major points that we advise all school districts keep in mind as the landscape surrounding special education continuously changes during this public health crisis:

If instruction and educational services are provided to general education students, a school district has an obligation to provide instruction and educational services to special education students.
The ultimate concern in providing services to students served by special education or Section 504 is always the provision of a free and appropriate public education ("FAPE").
FAPE looks different for each student. Any services should be determined based on the individual needs of each student.
Document all actions taken and efforts made during the period of extended closure and be proactive and open in communication with parents.

If your district needs assistance developing a specific plan of action or if you need to discuss specific issues, we are available to provide that assistance at any time.

Legal Requirements for School District Electronic Transactions

The implementation of social distancing in response to the COVID-19 pandemic has significantly impacted how school districts conduct business. Fortunately, the Texas Uniform Electronic Transactions Act (“UETA”) and the federal Electronic Signatures in Global and National Commerce Act (“E-Sign Act”) enable school districts to use electronic signatures for most consensual transactions, including written communications, student and employment documents, contracts for goods and services, and even electronic bids, notarized documents, and real estate transactions under certain conditions.

When conducting business electronically, school districts should take the following key guidelines into account:

If it has not already done so in Policy CQ (Local), your board of trustees should adopt rules governing the use of electronic transactions for school business, specifically including rules for the use of electronic signatures to authenticate a written electronic communication sent to the district.
In order for an electronic transaction to be valid and enforceable, both parties must agree to conduct the transaction via electronic means and comply with applicable retention requirements. The parties should state their agreement to conduct business electronically in the contract itself or in a separate agreement for each transaction that will be conducted electronically.
Electronic bids, notarized documents, and real estate transactions all fall within the UETA, but are subject to special considerations.
Where a statute or other law requires a particular method of communication, such as certified mail, that requirement controls over the UETA, and electronic communication in that instance is not effective, even if the parties wish to agree otherwise.
While the UETA and E-Sign Act both function to remove barriers to electronic commerce, these laws do not govern certain types of transactions and notices, such as transactions under the Uniform Commercial Code (other than sales and leases).
The Texas Department of Information Resources and the State Library and Archives Commission have established Guidelines for the Management of Electronic Transactions and Signed Records for state agencies, which, although not mandatory for school districts, provide useful guidance regarding best practices for conducting legally-enforceable electronic transactions and effectively authenticating electronic signatures.
School districts may choose to engage a third-party service for implementing electronic signatures, such as creating digital signatures using Public Key Infrastructure ("PKI"). The Texas Department of Information Resources maintains an up-to-date list of approved Digital Certificate and PKI service providers that school districts may find helpful.

For assistance navigating the legal requirements for electronic transactions and recommended contract provisions, please contact us.

COVID-19-Related Purchases

The emergency exception to procurement outlined in Texas Education Code Section 44.031(h) could apply to COVID-19-related purchases, if your board has adopted a resolution authorizing such emergency purchases. Because of the potential for FEMA reimbursement of such purchases, unless the district already has a competitively procured vendor under contract, districts should:

attempt to purchase the goods/services via a 2 C.F.R. Part 200-compliant purchasing cooperative, and
attach an addendum that includes the federal and FEMA-required provisions to the contract/purchase order issued to the vendor, to maximize the potential to receive FEMA reimbursements.

We have developed a FEMA checklist for cooperative purchases and a contract/PO addendum for FEMA purchases. Should you desire copies of these documents, please contact us.

KBS Law Group is committed to working with districts to navigate through this crisis together. Please contact us with any questions and be on the lookout for future updates.