District Wins Federal Appellate Decision concerning its Suspension of Football Coach for Praying after Games on Field with Players.
In a widely publicized case, the full 9th Circuit Court of Appeals ruled in favor of an Oregon School District, holding that firing a coach for on-field prayer did not violate the coach’s First Amendment free-speech nor free-exercise-of-religion rights. See Kennedy v. Bremerton School District (9th Cir. 2021). In 2015, Joseph Kennedy was an assistant football coach for Bremerton School District (BSD). He began to privately pray on the field immediately after football games. Eventually, some of his players asked if they could join him, which he allowed. Over time, a majority of the team, and sometimes even members of the opposing team joined him at the 50 yard line for after-game prayer.
In September, BSD Superintendent Leavell sent Kennedy a letter clarifying BSD’s “Religious-Related Activities and Practices,” advising Kennedy that he could continue to give inspirational talks but “[t]hey must remain entirely secular in nature, so as to avoid alienation of any team member.” After the next few games, Kennedy abided by the directive. However, Kennedy wrote BSD that he would resume praying on the fifty-yard line immediately after the conclusion of the October 16, 2015 game. In anticipation of Kennedy’s defiance, local police blocked the field from the public. However, after the game, Kennedy prayed with his team at the 50 and spectators rushed the field, resulting in some injuries.
A few days later, the District sent Kennedy another letter stating that Kennedy’s “conduct … violated BSD’s policy. BSD reiterated that it ‘can and will’ accommodate ‘religious exercise that would not be perceived as District endorsement, and which does not otherwise interfere with the performance of job duties.’ To that end, it suggested that ‘a private location within the school building, athletic facility or press box could be made available to [Kennedy] for brief religious exercise before and after games.’” After Kennedy defied BSD’s directive, he was placed on administrative leave, and he did not apply for a 2016 coaching position. Kennedy then sued the District, alleging violation of his First Amendment rights of free speech and exercise-of-religion and violation of Title VII, with failure to accommodate and retaliation allegations.
Addressing the Free Speech claim, the Court stated that if Kennedy spoke as a public employee when he engaged in a demonstrative religious activity on the field in full view of players and spectators, his speech is not protected. The Court held that Kennedy was speaking as a public employee as he was “clothed with the mantle of one who imparts knowledge and wisdom.” However, the Court further opined that even if Kennedy was speaking as a private citizen, BSD still had adequate justification to suspend him because BSD had a State interest in avoiding an Establishment Clause violation. The Establishment Clause “proscribes public schools from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” The Court also stated that Kennedy’s “media blitz” belied his contention that his prayer was “personal and private.”
Next, the Court addressed Kennedy’s free exercise claim. The Court found that BSD’s directive to Kennedy to keep his after-game speeches secular was a compelling and justified attempt to avoid an Establishment Clause violation. Furthermore, BSD tried to accommodate Kennedy to avoid an Establishment Clause violation.
Lastly, the Court addressed Kennedy’s Title VII claims alleging: failure to rehire; disparate treatment; failure to accommodate, and retaliation. Denying the failure to rehire claim, the Court found that Kennedy did not establish the required element that he was adequately performing his job. The record clearly reflected that Kennedy refused to follow district policy and that student safety was compromised when spectators rushed the field after the October 16 game. Kennedy similarly failed to make a prima facie case of disparate discrimination because he could not prove BSD treated a similarly-situated employee more favorably.
Regarding his failure to accommodate allegations, the Court found that Kennedy made a prima facie case. After establishing a prima facie case, the burden then shifted to the District to show that it made a good faith effort to accommodate. Again, the Court found that BSD offered to accommodate Kennedy, who indicated that the only acceptable alternative was to permit him to continue his after-game prayer on the field. The Court held that “because allowing Kennedy to do so would constitute an Establishment Clause violation, the District could not reasonably accommodate Kennedy’s practice without undue hardship.” For the retaliation allegations, the Court again found that Kennedy made a prima facie case, but ruled for the District because if it had not forbidden Kennedy’s prayer, it would have violated the Establishment Clause. The Court found that the District’s conduct was a legitimate non-discriminatory reason to take an adverse employment action.
To read the Court’s full opinion, please download:
Three Takeaways for School Districts After the Supreme Court’s Recent Ruling on Students’ First Amendment Rights
In a highly anticipated ruling, Mahoney Area School District v. B.L, the United States Supreme Court affirmed the Third Circuit Court’s ruling that a school district violated a student’s First Amendment Right to Free Speech. In July 2020, we reported that the Third Circuit Court of Appeals ruled in favor of B.L, a cheerleader, who was suspended from the team for posting a vulgar snapchat when she was off-campus during a weekend.
Notably, the Supreme Court did not provide a “bright line” rule for districts to follow concerning when a student can be punished for off-campus speech. Because of the “advent of computer-based learning,” the Court hesitated to determine precisely which of many school-related, off-campus activities allow a school to regulate student speech. The Court stated, “we do not now set forth a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus to a school’s special need to prevent, e.g., substantial disruption of learning related activities or the protection of those who make up a school community.”
However the Court outlined “three features of off-campus speech that often, if not always distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech.” Below are three takeaways from the high court that should help guide school districts when confronted with students’ First Amendment rights to free speech.
The three features that schools must analyze are as follows:
- In loco parentis? A school, in relation to off-campus speech, will rarely stand in loco parentis. Geographically, off-campus speech will normally fall within the zone of parental, rather than school responsibility.
- Political or religious speech? Schools must tread carefully when attempting to regulate students’ political or religious speech that occurs outside of school or at a school program or activity. Regarding this type of speech, “the school will have a heavy burden to justify intervention.”
- Protection of unpopular expression? The high court proclaimed that “America’s public schools are the nurseries of democracy.” Because the free exchange of differing ideas facilitates an informed public opinion, unpopular ideas have a special need for protection.
The Court found that “taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference.”
When discussing the particulars of B.L’s case, the Court addressed three of the schools’ arguments that supported its discipline of B.L. First, the Court found that while crude, B.L’s words did not amount to “fighting words,” as she did not identify the school or target a member of the school community. Further, the Court found the school’s interest in anti-vulgarity to be weakened considerably by the “fact that B.L. spoke outside the school on her own time.” Also, the school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom.
Second, the Court rejected the school’s argument of disruption within a school-sponsored activity, finding no evidence of substantial disruption or threatened harm to the rights of others that would justify the school’s action. The record showed that there was a 5-10 minute discussion of the matter in an Algebra class, which did not meet the demanding standard of disruption.
Lastly, the school’s argument that the speech impacted team morale was also rejected as there was no evidence of substantial interference or disruption of the school’s efforts to maintain team cohesion.
Perhaps anticipating criticism that the Court would waste its time on a First Amendment analysis of such content, the Court stated that “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”
To read the Court’s full opinion, please download the following:
Even Though School’s Out for the Summer, Districts are Busy Preparing for Post-COVID-19 Instruction. Make Sure Your District is Ready!
As life is beginning to return to normal, schools are learning to navigate the post-pandemic landscape. In preparing for the next academic year, districts need to ensure they are in compliance with public health and safety standards, while meeting their educational obligations to students.
To assist school leaders with their back-to-school preparations, we have prepared a new checklist, “Reopening: In-Person Instruction After COVID-19 Disruption Self-Audit Checklist and Best Practices for School Districts.” Please download the Checklist by clicking the link below.
Federal Appellate Court Permits Geographic and Socioeconomic Factors as Criteria for Selective Public School Admission
Boston Public Schools’ use of geographical residency and family income status for entrance to its elite “exam schools” survived a constitutional challenge by a group of white and Asian parents. In Boston Parent Coalition for Academic Excellence v. Boston Schools Committee (1st Cir. 2021) a change in the admissions policy, triggered by the COVID-19 pandemic, was found to be racially neutral.
For over twenty years, Boston Public Schools (the “District”) used specific factors for admissions to its selective 7-12th grade schools, including grade point averages (GPA) and entrance exams. The COVID-19 pandemic, however, stopped the administration of entrance exams. A special committee was therefore tasked with developing a new admissions plan (“the Plan”). The Plan’s admissions factors included GPA and residency by zip code. The Plan allocated the first 20% of seats to the students with the highest GPAs. The remainder of the spots were awarded among zip codes based on the proportion of Boston school children residing in each zip code, with lower income zip codes receiving priority.
Before the acceptance letters for the 2021-2022 school year were mailed, a group of white and Asian parents (Plaintiffs) filed suit against the District, claiming that the Plan violated the Equal Protection Clause of the Fourteenth Amendment. The district court ruled in favor of the District. Plaintiffs then appealed the district court’s judgment and moved the appellate court for an injunction preventing the implementation of the revised admissions criteria. The appellate court denied Plaintiffs’ motion, thereby permitting the acceptance letter based on the Plan to be issued.
In rejecting Plaintiffs’ claim that the Plan was intended to discriminate against white and Asian students, the court agreed with the lower court’s conclusion that the new admissions criteria were “completely neutral on their face.” Admittedly, one of the District’s goals in implementing the new admissions criteria was to increase geographic, socioeconomic and racial diversity. The court found the Plan employed, in addition to GPA, only geography and family income—not race—as selection factors. According to the court, “there is no likely controlling reason why one cannot prefer to use facially neutral and otherwise valid admission criteria that cause underrepresented races to be less underrepresented.”
Furthermore, the First Circuit perceived “no likely error in the district court’s conclusion that a discriminatory purpose did not motivate the plan’s adoption.” According to Plaintiffs, the School Committee Chairperson made fun of the names of several Asian-Americans who spoke at the public hearing. The court agreed with the lower court that “those sophomoric and hurtful comments by the Chairperson did not establish racial animus as a factor motivating the School Committee as a whole to adopt the Plan.”
To read the court’s opinion, please download:
Appellate Court Holds Constitutional Right created by Collective Bargaining Agreement
A Federal Appellate Court recently held a school district employee was denied a “property right” secured by the Fourteenth Amendment, without due process, because the district failed to employ the dismissal procedures outlined in its collective bargaining agreement (CBA). In Cheli v. Taylorsville Community School District (7th Cir. 2021), the superintendent and director of computer services fired Joshua Cheli, a computer services administrative assistant, in an impromptu meeting because a female student alleged that Cheli had sexually harassed her. The Board of Education memorialized the termination at a subsequent meeting. Cheli was never given notice of the Board meeting nor written notice of the charges against him. Thereafter, Cheli filed suit in federal court alleging that he was denied due process required by the Fourteenth Amendment.
Cheli’s employment with the district was governed by a CBA which provided, inter alia, that: (1) an employee may be discharged only for “reasonable cause”; (2) a conference shall be held prior to the discharge; (3) an employee had the right to a representative at the conference, and (4) a written explanation for the discharge must be provided.
The issue before the Seventh Circuit was whether the CBA gave Cheli a protected property interest in his employment. The Court explained that property interests in employment are not inherent in the Constitution, rather they are created and defined from an independent source, such as state law or contract. The Court applied Illinois law, which like many other states, presumes an employment relationship without a fixed duration is terminable “at will.” However, Cheli argued that the CBA was a contract that established his legitimate expectation of continued employment. The Court agreed with Cheli, holding that the CBA “mandates the only way defendants ‘may’ terminate its employees who are party to the agreement: with a showing of ‘reasonable cause.’” Furthermore, the CBA did not contain any language disclaiming a property interest.
This case reminds districts that if their collective bargaining agreement contains a “reasonable cause” provision, it must provide due process to its employees, including notice of reasons for action as well as an opportunity to be heard. By providing these due process protections, districts will reduce exposure to claims alleging Fourteenth Amendment violations. To read the Court’s opinion, please download the following:
Qualified Immunity: a Powerful Defense Against Students’ Constitutional Violation Claims
Qualified immunity remains a strong defense, protecting state actors--including public school staff--when they are sued for violating an individual’s constitutional rights. Recently, in LG v. Columbia Public Schools et. al., the Eighth Circuit dismissed a suit against a school resource officer (“SRO”) relying on the doctrine of qualified immunity. In that case, a public high school student, LG, sued SRO Keisha Edwards alleging that SRO Edwards violated her Fourth Amendment rights by detaining her (the Fourth Amendment protects against unreasonable searches and seizures). According to the complaint, the sixteen-year old was summoned to the school’s office from her classroom. When she arrived, SRO Edwards informed LG that the police were on campus to question her. The SRO then escorted LG to a room in the school where two police officers were waiting. Once LG entered the room, SRO Edwards left and closed the door behind her. The officers interrogated LG about a sexual assault that had occurred off campus. According to LG, she was distraught during the interrogation and thereafter suffered mental health issues. LG filed a federal lawsuit against the assistant principal, SRO Edwards, and the city police officers. In response, SRO Edwards moved to dismiss the complaint on the ground of qualified immunity. While the District Court denied the motion, the Eighth Circuit reversed.
The doctrine of qualified immunity protects a government employee from lawsuits, if the employee was performing a discretionary function, and the employee acts in a manner that a reasonable person would believe was constitutional. The Appellate Court focused on the second leg of the immunity doctrine and explained that “qualified immunity generally protects public officials from constitutional lawsuits where the officials’ conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” In analyzing whether there has been a violation of a clearly established right, the Court stated that state actors are “liable only for transgressing bright lines, not for making bad guesses in gray areas.” SRO Edwards did not display a weapon, touch the student, use language or tone indicating that compliance was necessary or retain the student’s property. In determining whether SRO Edwards violated a clearly established constitutional right, the Court found that given SRO “Edwards’s [sic] minimal involvement and the public-school setting, we do not think existing circuit precedent…would have alerted every reasonable officer in Edwards’s [sic] position that she was violating LG’s constitutional rights.” Thus, there was no “bright line” here that SRO Edwards crossed.
Crucially, the Court discussed the important factor that the incident occurred in a public school, where “students have a lesser expectation of privacy than members of the public generally.” Though the Court sympathized that LG reasonably did not feel free to leave the room, the Court stated that “we suspect students rarely feel otherwise while in school, where their attendance is compulsory.” Teachers and administrators control students’ movements to some degree from the first bell to the last. To read the Court’s full opinion please download:
Social Media and Electronic Communication: Self-Audit Checklist and Best Practices for School Districts with regard to their Students
School districts have been more reliant than ever upon internet-based communication with students and, given social distancing, students are more dependent upon social media than ever. We thought it timely to provide direction to districts concerning their polices with regard to student use of social media and electronic communication.
To assist districts address the dilemma they face balancing freedom of speech against the efficient operation of the schools (and the obligations to address cyber-bullying, harassment, and discrimination), we have prepared the attached checklist, “Social Media and Electronic Communication; Self-Audit Checklist and Best Practices for School Districts with regard to their Students.” This is an update of the checklist published in October of 2013.
Retaliation Claims Were the #1 Basis for Charges Filed With the EEOC in 2020
In 2020, retaliation claims constituted the most frequently filed charges with the Equal Employment Opportunity Commission (EEOC). According to data recently released by the EEOC, retaliation complaints comprised 55.8% of all charges filed. According to the EEOC data, disability charges were the second most frequent, comprising 36.1% of charges, followed by race (32.7%), sex (31.7%), and age (21%). National origin, color, religion, Equal Pay Act, and genetic information were less frequently filed charges of discrimination. Claimants generally alleged discrimination on multiple bases, which is why the total of the reported causes far exceeds 100%.
In fiscal year 2020, the EEOC reported that it secured $439.2 Million in monetary benefits for employees who were victims of discrimination. According to EEOC Chair Charlotte Burrows, “the current pandemic is not only a public health crisis and economic crisis—it’s also a civil rights crisis.” To read the EEOC’s full press release, please visit: https://www.eeoc.gov/newsroom/eeoc-releases-fiscal-year-2020-enforcement-and-litigation-data.
“Offhand Remark” About Husband’s Salary Sinks School’s Defense, Keeping Teacher’s Pay Discrimination Suit Alive
A Federal Court of Appeals recently reinstated a teacher’s Title VII and Equal Pay Act suit based on an administrator’s off-hand comment. In Kellogg v. Ball State University d/b/a Indiana Academy for Science, Mathematics and Humanities, (No. 20-1406, 7th Cir. 2021), the Seventh Circuit found that an “offhand remark”, made 10 years earlier, was evidence of the school’s discriminatory intent. In 2006, Cheryl Kellogg was hired as a science teacher by the Indiana Academy (“the Academy), a residential public high school for gifted high school upperclassmen. During salary negotiations with Dr. Williams, the Academy’s director, Williams told Kellogg that “she didn’t need any more [money], because he knew her husband worked at Ball State University, “so they would have a fine salary.” Her starting salary was then set at $32,000.
After eleven years with the Academy, Kellogg complained to the dean about her salary, asserting that she was paid less than her similarly situated male colleagues. The dean responded that “the issue was salary compression,” because those who were hired after her began at higher salaries. According to the dean, Kellogg’s salary had increased 36.45% during her time at the Academy, while her colleagues’ salaries had increased by a smaller percentage. Kellogg responded by filing a federal lawsuit, asserting violation of Title VII and the Equal Pay Act.
The District Court granted the Academy’s Motion for Summary Judgment, because it found that the Academy provided gender-neutral explanations for Kellogg’s pay. When Kellogg appealed, the Seventh Circuit Court of Appeals reversed. In its opinion, the Seventh Circuit held that “…the Academy blatantly discriminated against Kellogg by telling her that, because her husband worked, she did not need any more starting pay. Such clear discrimination calls the sincerity of the Academy’s rationales into question.”
On appeal, the Academy argued that Dr. Williams’ statement was a “stray remark” with “no real link” to Kellogg’s pay. Furthermore, the Academy contended that the statement occurred outside the statute of limitations period, and thus, could not establish liability. The Appellate Court rejected the Academy’s statute of limitations argument, finding that under the “paycheck accrual rule,” “a new cause of action for pay discrimination arises every time a plaintiff receives a paycheck resulting from an earlier discriminatory compensation practice.” Applying this rule, the Court found that “each of Kellogg’s paychecks gave rise to a new cause of action for pay discrimination.” Moreover, the Court found that “Williams’ alleged discriminatory statement casts doubt on the Academy’s non-discriminatory explanations for Kellogg’s salary, and Kellogg can rely on the statement even though Williams uttered it outside the limitations window.”
Please download Court’s Opinion here:
Federal Appeals Court Denies Governmental Immunity to Educators in Lawsuit for 3rd Grader’s Suicide
The Sixth Circuit Court of Appeals recently permitted a wrongful death suit, brought by the parents of an 8 year-old to proceed by rejecting the public school educators’ governmental immunity defense,. In Meyers et. al. v. Cincinnati Board of Education, et. al., No. 18-3974 (6th Cir. 2020), the Court found the alleged actions of the school employees so egregious, that the governmental immunity would not protect them. As asserted in the suit, third-grader Gabriel Taye was purported viciously attacked in the boys’ bathroom at Carson Elementary school. Surveillance footage from that day shows a student grabbing Gabriel’s hand and yanking him towards the wall. As Gabriel lay unconscious on the floor, more than a dozen students came into the bathroom, taunting and kicking him. When Assistant Principal Jeffrey McKenzie arrived in the bathroom, he allegedly did not attempt to check Gabriel’s vital signs or call for help. Rather, McKenzie repositioned a garbage can and stood over the child, doing nothing. By the time the school nurse arrived, Gabriel had been unconscious for seven minutes. The nurse purportedly examined Gabriel, who had regained consciousness, but did not call 911 (school policy dictated that 911 be called if a student loses consciousness for at least one minute). The nurse did call Gabriel’s mother, informing her that Gabriel had “fainted,” was “alert,” his vitals were “fine,” and that he did not require further medical attention. No one from the school informed Gabriel’s parents that students had attacked their son, nor that he had been unconscious for seven minutes.
Later in the afternoon, when Gabriel arrived home from school, he could not recall what happened in the bathroom that day, only that he “fell” and his stomach hurt. In the evening, Gabriel vomited twice, and his mother took him to the emergency room. She only told the doctor what she had been told, that her son had “passed out” at school. With this information, the doctor diagnosed Gabriel with a stomach flu and discharged him. The next day, Gabriel stayed home from school, but when he subsequently returned, two boys allegedly attacked him in the bathroom. Gabriel reported the incident to a teacher, but nothing came of it. When Gabriel arrived home from school that day, he went to his bedroom, where he hanged himself with a necktie.
Gabriel’s parents filed a civil rights suit in federal court against the school district, superintendent, principal, assistant principal and school nurse. The state law claims included wrongful death, intentional and negligent infliction of emotional distress, loss of consortium, failure to report child abuse, and spoliation of evidence. Defendants filed a Motion to Dismiss the state law claims, in part on the grounds that they are entitled to governmental immunity. The Trial Court denied the motion. On appeal, Principal Jackson and Assistant Principal McKenzie argued that they were entitled to governmental immunity because the complaint failed to allege sufficient facts to establish that their conduct was “reckless” as a matter of law.
The Appellate Court reported that Gabriel’s parents alleged they discovered that their son had been bullied at school twelve times throughout his first through third grade years. Furthermore, Plaintiffs alleged that the “destructive and dangerous climate at Carson [Elementary School] created an unsafe environment for students and intentionally kept parents in the dark.” On appeal, Jackson and McKenzie maintained that Plaintiffs insufficiently pleaded facts that showed that that Gabriel’s suicide was foreseeable. The Court rejected Defendants argument. “If a school is aware of a student being bullied but does nothing to prevent the bullying, it is reasonably foreseeable that the victim of the bullying might resort to self-harm, even suicide.” The Appellate Court found that Plaintiffs sufficiently alleged facts to show recklessness on the part of the defendants, including: lying to Gabriel’s parents and not informing them of six instances of bullying; failing to discipline the attackers; failing to call 911; failing to put teachers on notice of the violent bathroom attack; reporting false information about bullying incidents; and ultimately preventing Gabriel’s parents from fully understanding their son’s “horrifying experience at Carson Elementary until it was too late.” Consequently, the Court found that the principal’s and assistant principal’s “behavior, as alleged, to be egregious and clearly reckless, thus barring them from the shield of governmental immunity.”
To read the Court’s opinion, download:
COVID-19 Issues: Avoiding Potential Employment Law Liabilities When Schools Reopen
School district employers navigating the COVID-19 pandemic have already confronted myriad legal compliance challenges. As school districts that have adopted virtual or hybrid learning approaches plan for full reopening, an issue of paramount importance is employment law compliance. School districts’ best protection against COVID-related employment claims is to follow applicable federal, state, and local laws and guidance on matters such as workplace safety, employee health monitoring, COVID leave laws, accommodations, and (when they become available) vaccines. By following such guidance, the school district will be able to assert the defense that it has adhered to reasonable standards of care.
This checklist is intended to identify key COVID-19 workplace issues affecting school districts in order to enable them to assess and mitigate potential risk. It is critical to remember that laws and guidance concerning COVID-19 are rapidly evolving, and therefore the information contained in this checklist is subject to change. School districts should frequently monitor the Centers for Disease Control and Prevention (“CDC”) website and the websites of relevant state and local authorities for the latest requirements and guidance. Specific concerns should be discussed with your district’s attorney to ensure the district is acting within the bounds of current federal, state, and local laws.
School districts may wish to complete this checklist together with legal counsel. Depending on the circumstances, completing the Self-Audit Checklist with the assistance of and at the direction of counsel, may help protect the document pursuant to the attorney-client privilege.
With COVID-19 Cases Rising Nationwide, Make Sure Your District is Providing Services to Special Education Students
The Coronavirus pandemic has wreaked havoc on the normal functioning of schools across the country, but it has made addressing the needs of special education students particularly challenging. Schools continue to address the problems of providing a free appropriate public education (FAPE) with school buildings shuttered or only partially open. In response to inquiries concerning the implementation of the Individual with Disabilities Education Act (IDEA), the Office of Special Education Programs (OSEP) within the U.S. Department of Education issued a Question and Answer (Q&A) document “to provide clarity to the public regarding existing requirements under the law or agency polices.”
Finding that local educational agencies (LEAs) are “facing new and unexpected challenges in providing meaningful instruction to children, including children with disabilities,” OSEP also recognized that “ultimately, the health and safety of children, families and the school community is most important.” However, OSEP also emphasized “that no matter what primary instructional delivery approach is chosen, … LEAs, and individualized education program (IEP) Teams remain responsible for ensuring that a free appropriate education (FAPE) is provided to all children with disabilities.”
A few takeaways from the OSEP Q&A document are as follows: (1) IEP Teams should consider alternate available methodologies or deliveries, such as online instruction or videoconferencing; (2) a current IEP can be amended or modified, but that amendment cannot take the place of an annual IEP Team meeting; (3) if extended school year services (ESY) were unable to be provided during the summer, LEAs should consider providing ESY services during school breaks or vacations; and (4) if the pandemic prohibits face-to face meetings, IEP Teams can meet through alternate means.
For more detailed answers to your questions about implementation of the IDEA, please download OSEP’s Q&A Document.
Appellate Court Rules a Black Male High School Student’s Discrimination Suit Over Dyed Hair Can Proceed
The Fifth Circuit Court of Appeals revived part of a public high school student’s sex and race discrimination case in Sewell v. Monroe City School Board, et. al, No. 18-31086 (5th Cir. 2020). The reported facts of the case are that on the first day of the 2016-2017 academic year, Roosevelt Rankins, Dean of Students at Neville High School, asked teachers to send students with dyed hair to his office. The Louisiana high school’s dress code prohibited “hair dyed outlandish colors.” Many students of all races, male and female, wore dyed hair to school, sporting “blonde, purple and red colors as well as fiery-colored tips.” Some African American female students also wore multi-colored weaves in their hair. However, the only students sent to the dean’s office on that first day were African American males, one of whom was Jaylon Sewell. Because of Sewell’s dyed blond hair, Dean Rankins, who is also African American, and Principal Whitney Martin did not let him attend class that day. The next day, Sewell’s mother, Bonnie Kirk, met with Principal Martin and Superintendent Brent Vidrine and told them she believed her son was being discriminated against because he is an African American male.
While Sewell was allowed to return to school, Dean Rankins “ridiculed” him “every other day” by calling him a “thug” and a “fool.” The dean also asked Sewell if he “was gay with ‘that mess’ in his head.” Sewell further asserted that the dean discouraged other students from talking to him. In November, Sewell was suspended after he was accused of sexual assault by a female student. Sewell claimed that the dean “encouraged” the girl to “lie” about the alleged incident. Furthermore, Sewell asserted that the dean told him that “he wouldn’t be getting in so much trouble if his hair was not that color.” Shortly thereafter, Principal Martin recommended Sewell for expulsion.
The school board’s expulsion committee voted not to expel Sewell and “chose not to suspend Sewell because the timing of events was suspicious; school officials did not complete expulsion documentation until four days after the assault and did not deliver the documentation to Kirk until ten days after that.”
In November 2017, Kirk filed suit in Federal Court on behalf of her son against the school board, the school board’s insurer, Superintendent Vidrine, Dean Rankins, and Principal Martin alleging, among other things, race and sex discrimination under Title VI and Title IX. The District Court granted Defendants’ Motion to Dismiss on all counts. Sewell, who by then had attained majority, filed an appeal concerning the dismissal of his Title VI and IX claims only.
While the Court of Appeals agreed with the dismissal of Sewell’s cause of action for intentional discrimination, the Court found that “Sewell’s’ harassment claim has some legs.” In addressing the plausibility of the hostile environment/ harassment claims, the Court examined whether the dean’s verbal abuse was based on Sewell’s sex and/or race and whether it was “so severe, pervasive, and objectively offensive” that it deprived Sewell of an educational benefit. First, the Court found it was plausible that the Dean’s harassment of Sewell stemmed from a discriminatory view that African American males should not have blond hair. Though white and female students wore a variety of dyed hairstyles, Sewell was the only student punished during the year for violating the school’s hair policy. Furthermore, the dean’s “verbal abuse also tied Sewell’s hair to his race and sex.”
Second, the Court found that the harassment may have been so severe, pervasive and offensive that it denied Sewell an educational benefit. In his complaint, Sewell claimed that the verbal abuse from the dean made him “depressed” and “traumatized.” The Court found that “intense verbal abuse that comes from an authority figure—like a school administrator—and persists for most of the school year can constitute a hostile education environment.”
Third, the Court found it is plausible that the school board knew about the harassment. The U.S. Supreme Court has held that “the school board had knowledge if a district official with authority to address the discrimination did.” The Court of Appeals found that the superintendent in this case “fits the bill” because Sewell’s mother complained to several school officials, including the superintendent. Furthermore, the Court found that not only did the superintendent know about the harassment, but he could have done something about it. The superintendent could have stopped the dean by directing the principal or by disciplining or dismissing the dean. “His knowledge was thus the school board’s knowledge.” Though the school board knew of the harassment, it did nothing after the superintendent promised to “talk to” the dean and principal. A school board is liable for harassment if it knew about the abuse and was deliberately indifferent. Thus, Sewell’s harassment claims under Titles VI and IX survived the pleading stage.
Read the Court’s full opinion by downloading here.
The Office of Civil Rights Clarifies Five Important Definitions Under Title IX: Are Your District’s Procedures Compliant?
On October 7, 2020, in response to many questions about terms used in the newly revised Title IX regulations, effective August 14, 2020, the Department of Education’s Office of Civil Rights (“OCR”) clarified several key terms. OCR provided revised definitions for: “sexual assault”; “dating violence”; “domestic violence” and “stalking.” In the recently revised regulations, the definition of sexual harassment relied upon provisions in Federal statutes. To allay confusion, OCR issued a blog post which clarified those definitions.
Furthermore, OCR stated in its blog post that “for the first time, OCR will enforce a legally binding definition of sexual harassment to include even a single instance of these serious forms of sex-based sexual harassment: quid pro quo harassment, sexual assault, dating violence, domestic violence and stalking. Previously, OCR analyzed whether such conduct was sufficiently ‘severe’ or ‘pervasive’ to be covered under Title IX. No longer will OCR evaluate whether sexual misconduct of this nature meets a severe or pervasive threshold before Title IX protections are triggered. Now, each of these forms of sexual misconduct will constitute a per se incident of sexual harassment.”
To aid in compliance, Districts should revise their Title IX policies to conform with these new definitions. Go to https://www2.ed.gov/about/offices/list/ocr/blog/index.html to read the full OCR blog post. Also, if you haven’t already done so, SLRMA Members should review the Checklist posted on June 30, 2020 entitled “Responding to Sexual Harassment Allegations: Revised Self-Audit Checklist and Best Practices for School Districts.”
For more guidance on Title IX compliance, SLRMA Members can download our previously posted Checklist, “Responding to Sexual Harassment Allegations: Revised Self-Audit Checklist and Best Practices for School Districts.” Download here:
Engaging IT Vendors in the Era of Remote Learning Best Practices for Schools & Districts
School Leaders Risk Management Association Members:
As traditional methods of learning increasingly give way to social distancing and remote learning in the COVID-19 era, schools need reliable, cost-effective, and safe solutions to connect with students and facilitate learning under these challenging new conditions. As third-party IT vendors offer these necessary solutions - from Learning Management Systems and cutting-edge EdTech applications to general purpose video conferencing tools - schools have more choices than ever. However, because these vendors often have access to personal information (PI) of students, districts must retain vendors and IT services that align with districts’ legal and regulatory obligations to protect students’ PI.
Office of Civil Rights Addresses the Impact on Schools of the Recent Supreme Court Decision concerning LGBTQ Discrimination
On June 16, 2020, we reported on the Department of Education’s Office of Civil Rights (“OCR”) Letter of Impending Enforcement Action against a State Athletic Association for allowing transgender girls to compete on girls’ track teams. According to OCR, this practice violated Title IX by discriminating against biological girls. Subsequently, the United States Supreme Court, in the landmark decision, Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, (June 15, 2020) (“Bostock”), held that LGBTQ discrimination in the workplace is unlawful sex discrimination in violation of Title VII. On August 31, 2020, OCR issued two separate letters, both of which addressed its interpretation of Title IX in light of the high court’s Bostock decision.
In the first letter, which revised its Letter of Impending Enforcement, OCR explained that it would continue to proceed with bringing the Connecticut Athletic Conference and District into compliance with Title IX. In this “formal statement of OCR’s interpretation of Title IX”, OCR stated that “the Bostock holding does not alter the legal authority for single-sex athletic teams under Title IX because Title IX and its implementing regulations permit certain distinctions based on sex….” OCR conceded that Title VII and Title IX did share some similarities. (Title VII applies to discrimination in the workplace, and Title IX limits its scope to discrimination in all educational institutions, both public and private, which receive federal funds). However, OCR noted that “unlike Title VII, one of Title IX’s crucial purposes is protecting women’s and girls’ athletic opportunities.” Furthermore, OCR found that “separate-sex teams have long ensured that female student athletes are afforded an equal opportunity to participate.” Title IX’s regulations “authorize single-sex teams because physiological differences are relevant.” When a recipient [of federal funds] provides “separate teams for members of each sex, under 34 C.F.R. §106.41(b), the recipient must separate those teams on the basis of biological sex, and not on the basis of homosexual or transgender status.”
In its second letter, OCR issued a notice of investigation of a student’s complaint that a Tennessee school discriminated against her based on her sexual orientation; the student asserts she is a lesbian. OCR again expressly addressed the Bostock decision when it stated, “Title IX does not mention discrimination on the basis of a student’s sexual orientation. However, the U.S. Supreme Court recently held that discrimination on the basis of an individual’s status as a homosexual constitutes sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964.” OCR specifically stated that the Supreme Court has long recognized “significant differences between workplaces and schools”, and that the Bostock decision does not control the Department’s interpretation of Title IX. However, OCR noted that Bostock does guide OCR’s “understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.” OCR concluded that it would open up an investigation of whether there was discrimination against this student on the basis of her biological sex, by reason of sexual orientation.” The fact that OCR published this letter at all was surprising, as it normally does not publish any letters regarding the opening of Title IX investigations.
While these two letters may seem contradictory, they are not. Importantly, OCR distinguishes its enforcement of Title IX regarding schools that separate students by biological sex in the context of intimate facilities and sports teams because Title IX “includes specific statutory and regulator exemptions outlining when consideration of biological sex is permitted.” These recent developments outlined above have muddied the waters in an already legally complex Title IX landscape. Resultantly, as the law on Title IX continues to develop, districts should seek legal counsel to maintain compliance when LGBQT issues arise.
You can download OCR’s two letters below:
Court Refuses to Delay New Title IX Regulations
On August, 12, 2020, in Commonwealth of Pennsylvania v. DeVos, 1:20-cv-01468 (D. Columbia 2020), the United States District Court for the District of Columbia, denied plaintiffs’ Motion for a Preliminary Injunction, or in the alternative for a Stay Pending Judicial Review. The litigation commenced on June 4, 2020, when the seventeen States’ Attorneys General and the District of Columbia filed a Motion for Preliminary Injunction challenging the legality of the U.S. Department of Education’s (“the Department”) Final Rule (“the Rule”) regarding new Title IX obligations. The Rule, which overhauled school districts’ harassment and assault reporting policies and processes, was scheduled to become effective on August 14, 2020. Please refer to our “Self-Audit Checklist and Best Practices for School Districts”, which was posted last month, about the new regulations.
The States’ Attorneys General sought an injunction enjoining implementation of the Rule, arguing that the Department exceeded its statutory authority, that the Rule was an abuse of discretion, and that the Department did not properly observe the Administrative Procedure Act’s notice and comment procedure. Furthermore, the States argued that “because of the Rules’ impracticable effective date, primary, secondary and postsecondary schools across the country will be required to completely overhaul their systems for investigating and adjudicating complaints of sexual harassment in less than three months, in the midst of a global pandemic that has depleted school resources, and with faculty, staff and student stakeholders absent from their campuses due to the pandemic and, in many cases, on leave due to the summer.”
Addressing Plaintiffs’ argument that the Rule’s mandated grievance process in K-12 schools exceeds the Department’s authority and fails to take into account the “unique environment of K-12 schools,” the Court flatly refused to substitute its judgment for that of the Department, and stated it was not its place “to ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives.” Additionally, the Court noted that the Department considered and adopted different rules for K-12 and postsecondary institutions, as elementary and secondary schools are not subject to the live hearing requirement.
Though the Court sympathized with the States’ argument that the COVID-19 pandemic has made schools’ implementation of the Rule difficult and that “a later effective date might have been a preferable policy decision,” it could not conclude that the Department’s effective date was “arbitrary and capricious,” especially since schools have “had almost two years to analyze and understand its requirements.”
To review the Court’s ruling, please download the Opinion here:
Federal Appellate Court Finds School Violated the First Amendment by Suspending Student from Cheerleading for Vulgar Snapchat Posted Over the Weekend; Away from School
On June 30, 2020, in a precedential decision the Third Circuit Court of Appeals in B.L. v. Mahanoy Area School District, No. 19-1842 (3rd Cir. 2020) found that a school had violated student B.L’s First Amendment rights by suspending her from the JV cheer team due to a picture she posted on snapchat. The picture in question was posted over a weekend and away from school and depicted B.L. and a friend with their middle fingers raised. The picture had the caption “F*$# Cheer”. B.L posted the picture because she was frustrated that she did not make the varsity team. The cheer coaches decided that the “snap” violated team and school rules. The cheerleaders’ rules required cheerleaders to “have respect for [their] school, coaches… [and] other cheerleaders” and “avoid foul language and inappropriate gestures.” The coaches also felt that B.L violated a school rule the required student athletes to “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”
First the Court addressed the issue of whether the snapchat constituted on or off campus speech and noted that the omnipresence of online communication poses challenges for school administrators and courts alike. The Court found that B.L’s snap fell “outside the school context” as it was “created away from campus, over the weekend, without school resources, and she shared it on a social media platform unaffiliated with the school.” Next, the Court analyzed whether the First Amendment allowed the school to punish B.L for her off-campus speech. According to the Court, “obscure lines between permissible and impermissible speech have an independent chilling effect on speech.” The School argued that its actions were justified because of its power “to enforce socially acceptable behavior” by “banning vulgar, lewd, obscene or plainly offensive speech by students.” In response, the Court cited the precedent that it was “unseemly and dangerous” for schools to control students’ free expression off campus by punishing them, and that those concerns “apply with equal force where a school seeks to control student speech using even modest measures, much less participation in extra-curricular activities, which ‘are an important part of an overall educational program.’” Because the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large, the Court held that the school was not justified in punishing B.L.
Addressing the new communicative technologies that now abound, the Court cautioned that though schools may want to seek to suppress speech they consider inappropriate, uncouth, or provocative, such efforts are not permitted “no matter how well-intentioned, without sacrificing precious freedoms that the First Amendment protects.” To assist both school administrators and students, the Court explained that a “test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.” Notably, the Court stated that it is “reserving for another day” the First Amendment implications of off-campus speech that threatens violence or harasses others.
Responding to Sexual Harassment Allegations: Revised Self-Audit Checklist and Best Practices for School Districts
In May 2020, the U.S. Department of Education (“DOE”) issued new regulations and for the first time addressed sexual harassment as a form of sex discrimination in violation of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681) (“Title IX”). Due to heightened attention to sexual harassment in elementary and secondary schools and Office for Civil Rights (“OCR”) investigations involving districts’ handling of sexual harassment allegations, districts should take steps to protect their students and themselves by appropriately implementing new procedures prescribed by the regulations. The new regulations are effective August 14, 2020.
Sexual harassment and sexual assault statistics generally are difficult to track at the elementary and secondary level. In April 2018, OCR issued data highlights of its 2015–16 Civil Rights Data Collection (“CRDC”), OCR’s most recent survey for districts and schools. The CRDC, compiling data from 17,000 districts comprising approximately 96,000 schools, indicated that:
- 5,535 incidents of sexual harassment or sex-based harassment or bullying were reported.
- 400 incidents of rape or attempted rape were reported.
- 9,300 incidents of sexual assault other than rape were reported.
Department of Education’s Office of Civil Rights issues a Letter of Impending Enforcement Action for Violation of Title IX for Participation of Transgender Girls on Girls’ Track Teams
On May 15, 2020, the Office of Civil Rights (“OCR”) issued a Letter of Impending Enforcement Action against the Connecticut Interscholastic Athletic Association (“CIAC”) and a Connecticut Board of Education. Three female high school track athletes complained that the participation of biologically male student-athletes discriminated against them on the basis of sex. According to the female student-athletes, the transgender girls’ participation deprived them of public recognition critical to college recruiting and scholarship opportunities. The CIAC had implemented revised rules permitting transgender participation in athletics with no restrictions.
OCR determined that the CIAC’s revised policy “denied female student-athletes benefits and opportunities, including to advance to the finals in events; to advance to higher level competition,… to receive awards and other recognition; and possibly to obtain greater visibility to colleges and other benefits. For these same reasons, OCR also determined that the CIAC treated students differently based on sex, by denying opportunities and benefits to female student-athletes that were available to male student-athletes.”
In a Groundbreaking Decision, a divided Federal Appellate Court Recognized a Constitutional Right to Literacy for Michigan Students
On April 23, 2020 the Sixth Circuit Court of Appeals rendered a divided decision in Gary B. et. al. v. Whitmer et. al., No. 18-1871 (6th Cir. 2020). The Court held that foundational literacy is a fundamental right under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. While the ruling is only precedential in Kentucky, Michigan, Ohio, and Tennessee, the case may have an impact in other jurisdictions. Further, the full Sixth Circuit Court voted to rehear the case, putting the entire holding in doubt.
In the case, students in several of Detroit’s worst-performing public schools, sued the Governor of Michigan; Michigan Department of Education; Superintendent of Public Instruction; State Board of Education (SBE); individual SBE members; and Michigan Department of Technology, Management, and Budget. The students alleged that their substandard performance was due to poor conditions, including absent or unqualified teachers, physically dangerous and unsafe buildings, and inadequate books and materials. The substandard conditions allegedly deprived the students of a basic minimum education, including foundational literacy.
The Court found that a basic minimum education is “deeply rooted in this Nation’s history and tradition”, and that this right to literacy is “implicit in the concept of ordered liberty.” Furthermore, the Court found that access to literacy is essential and “necessary for even the most limited participation in our country’s democracy.” The Court remanded the case to the District Court for further proceedings to determine the precise contours of an educational infrastructure that would include at least three basic components: facilities, teaching, and educational materials. The Court determined that for each of these components, the quality and quantity provided must be at least sufficient for students to plausibly attain literacy. The Court stated, in part, “…the question is whether the education the state offers a student—when taken as a whole—can plausibly give her the ability to learn how to read.” A dissenting justice of the Court asserted that the Court’s decision will create a free-wheeling right that allows federal judges to micromanage the work of local school boards.
Before the lower court could act on the appellate court’s order, a settlement was reached with the Governor only, which also included a release of all claims against all defendants. On May 14, 2020, Governor Whitmer issued a press release stating that she agreed, among other things, to propose legislation during her first term that would provide Detroit Public School Community District (DPSCD) with at least $94.4 million of funding for literacy-related programs and initiatives. Further, on May 19, 2020, full U.S. Court of Appeals for the Sixth Circuit voted to rehear the Gary B. case. The rehearing may render the decision moot, or it may more firmly establish education as a right.
Federal Appellate Court Affirms District Court’s Ruling that a School District Did Not Discriminate when Terminating a Non-Tenured History Teacher who Espoused Holocaust Denial Theories and Anti-Semitic Views
On April 22, 2020, the US Appellate Court for the Third Circuit issued its decision in Ali v. Woodbridge Township School District et. al., No. 19-2217 (3rd Cir. 2020) affirming the District Court’s grant of summary judgment to a school district, Board of Education, superintendent, and principal. Plaintiff, Jason Ali, who is of Egyptian descent and a non-practicing Muslim, was a non-tenured history teacher at Woodbridge High School alleged in his suit that he was terminated on the basis of his race, ethnicity, and religion. For his world history class, Ali posted links to articles on a school-sponsored website such as “Article in Saudi Daily: U.S. Planned, Carried out 9/11 Attacks—but blames others for them” and “The Jews are like a Cancer. Woe to the world if they become strong”. Ali also taught Holocaust denial theory to his students. When a reporter questioned the principal about the links on the website, the principal responded that he would take them down and investigate. Ali was fired the next day. Ali’s lawsuit alleged violations of employment anti-discrimination laws, hostile work and environment and violations of his First Amendment rights to free speech and academic freedom.
The Federal Appellate Court found that Defendants articulated three non-discriminatory reasons for Plaintiff’s termination, which included his dissemination of links to anti-Semitic online articles through the school’s official channels, Ali’s showing of no remorse for his conduct, and his teaching holocaust denial theory to his students. The Court found the reasons to be legitimate and non-discriminatory. The Court also found that Ali’s First Amendment rights were not violated because “teachers do not have a protected First Amendment right to decide the content of their lessons or how the material should be presented to their students.” Please click below to read the Court’s opinion.
COVID-19 Self-Audit Checklist & Best Practices
One of the most important obligations of school districts is to ensure the health and safety of its students. In order to help you navigate the recent COVID-19 (coronavirus) pandemic, we have created a “Health and Safety Plan for COVID-19 Self –Audit Checklist & Best Practices”. In addition to information about the disease, it guides districts regarding how to address the health concerns while keeping in mind the other legal obligations districts must consider.
Secretary of Education DeVos Announced a New Civil Rights Initiative to Combat Sexual Assault of Students in K-12 Public Schools
On February 26, 2020, Secretary DeVos announced that the Department of Education’s Office for Civil Rights (“OCR”) will launch a new Title IX enforcement initiative to address the disturbing increase of sexual assaults in K-12 public schools. The most recent Civil Rights Data Collection from the 2015-2016 school year indicates that there were approximately 9,700 incidents of sexual assault, rape, or attempted rape in our nation’s public elementary and secondary schools. This new initiative is intended to bolster the Department’s implementation of the “Pass the Trash” provisions of the Every Student Succeeds Act. Specifically, OCR will conduct compliance reviews, raise public awareness and support, conduct data quality reviews, and collect more detailed data on sexual assaults in the nation’s public schools. Secretary DeVos stated, “We cannot rest until every student can learn in a safe, nurturing environment where their civil rights are protected.”
U.S. Department of Education’s Office for Civil Rights (OCR) will launch the Outreach, Prevention, Education and Non-discrimination (OPEN) Center to Foster Proactive Compliance with Federal Civil Rights Laws
On January 21, 2020, U.S. Secretary of Education DeVos announced that the Department’s Office of Civil Rights (“OCR”) will launch the Outreach, Prevention, Education and Non-discrimination (OPEN) Center to foster proactive compliance with federal civil rights laws. The OPEN Center will assist schools by helping them come into compliance with federal civil rights laws prior to the filing of a complaint. This proactive approach will help ensure that schools are aware of their obligations under civil rights laws.
2020 FLSA Checklist for School Districts
In September 2019, the U.S. Department of Labor revised its rules, making many employees previously classified as exempt from overtime requirements now eligible for overtime pay under the FLSA. This is one of many critical changes to know going into 2020. Want to know how your school district to help avoid running afoul of wage and hours rules?
U.S Secret Service Issues Findings on Targeted School Violence
The U.S. Secret Service National Threat Assessment Center (NTAC) recently published a study concerning targeted school violence incidents that occurred from 2008 to 2017. The findings of this report have significant implications for school safety and security. The study suggests that many of these incidents could have been prevented, and supports the importance of schools establishing comprehensive targeted violence prevention programs.
If Gun Violence Comes to Your School, Will Your Security Plan be Bulletproof?
Over the past 20 years, Columbine, Sandy Hook, and Marjory Stoneman Douglas have come into the American vernacular as reminders that gun violence happens in our schools. Federal and state laws and regulations do not provide significant guidance to school districts on developing safety and security plans. But school districts can take many pro-active steps to prevent, prepare for, and respond in the event of violent acts or threats. Because student security is paramount, SLRMA has pored through the most current and effective resources and created a new resource – Protecting Students: Safety and Security in Schools Checklist and Best Practices.
U.S. Department of Labor Announces Overtime Final Rule
On September 24, 2019, the U.S. Department of Labor (DOL) Wage and Hour Division released a final rule concerning overtime, effective January 1, 2020, that will increase the salary threshold, by approximately 50%, that so-called “white collar” employees must be paid in order to be classified as “exempt” under the Fair Labor Standards Act (FLSA). Employees who do not meet the new heightened salary threshold of $684 per week (which equates to $35,568 per year) will be considered non-exempt and thus eligible for overtime pay. The DOL estimates that this change will impact approximately 1.3 million workers.
Department of Education Issues Findings on Chicago Public Schools
On September 12, 2019, Chicago Public Schools (CPS) and the U.S. Department of Education's Office for Civil Rights (OCR) entered into a resolution agreement related to OCR’s investigation into 2,800 student-on-student and 280 adult-on-student sexual harassment complaints over a 4 year period. Among the findings are that CPS failed to respond promptly to complaints, failed to maintain adequate grievance procedures, and failed to appoint a Title IX coordinator.
U.S. Department of Labor Confirms Special Ed Meetings as FMLA Eligible
In an opinion letter issued on August 8, 2019, the U.S. Department of Labor (DOL) Wage and Hour opined that parents attending school meetings concerning individualized education programs (IEPs) for children with serious health conditions triggers intermittent FMLA leave protection.
Department of Education to Investigate Transgender Policy Related to Sports
The U.S. Department of Education's Office for Civil Rights (OCR) decided to open an investigation related to a Title IX discrimination complaint brought by three Connecticut female track and field athletes. The complaint challenges the Connecticut Interscholastic Athletic Conference’s policy permitting transgender athletes to participate in interscholastic athletics based on their gender identification. Read OCR’s letter opening the complaint for investigation below.
When Rituals Go Wrong: How School Districts Can Prevent and Respond to Hazing
Public school “hazing” incidents are on the rise according to recent studies. School districts need a roadmap to effectively stop hazing and address hazing when it occurs. SLRMA highlights the critical role that school districts play in hazing prevention and education through a new checklist: Hazing Prevention, Early Intervention and Response Self-Audit Checklist and Best Practices.
Preventing Environmental Health Hazards in Schools
The U.S. Environmental Protection Agency (EPA) created an extensive environmental health resource geared toward preventing, reducing and resolving common environmental hazards in schools. This resource, Sensible Steps to Healthier School Environments, along with the EPA’s Healthy Schools Checklist assessment, will help school districts monitor and improve environmental health for students and staff. Read through the EPA’s resource and use the checklist to get a jump on making your school buildings environmentally safer.
Indicators of School Crime and Safety 2018
In April 2019, the National Center for Education Statistics (NCES) and the Bureau of Justice Statistics released their annual report on school crime. This report draws upon data from the perspectives of students, teachers, principals, and the general population concerning victimization, bullying, school conditions, fights, weapons, the presence of security staff at school, and other topics.
What Weighs on Principals’ Minds in 2019
Every year, MCH Strategic Data collects confidential responses from principals across the country about their top concerns. Learn what principals think about and are handling school safety, student social-emotional learning and mental health, teacher morale, and more.
Financial Fraud Prevention Tips for School Districts
School districts are not immune from internal fraud and unintentional financial mistakes that can cost a school district dearly. Read this article about important policies and processes in order to minimize the risk of fraudulent activity and financial mishandling.
Protecting Students in the Era of #MeToo
Combating student-on-student bullying and harassment is an age-old challenge for school districts. However, in 2019, the #MeToo movement increased awareness of sexual harassment or violence in our schools – and arguably, increased potential exposure for mishandling such an incident. SLRMA seeks to support school districts to simultaneously protect student victims and minimize legal liability through the latest resource, Protecting Students in the Era of #MeToo Self-Audit Checklist and Best Practices.
Arming Our Educators: What Teachers Think about Guns in the Classroom
When California State University - Northridge assistant professor Lauren Willner noticed that the debate concerning guns in schools missing a key piece of information - the opinions of teachers – she gathered scientific data on this issue directly from teachers. The results are summarized in the white paper, “What Do the Teachers Want? Educators’ Opinions About Being Armed in the Classroom to Prevent School-Based Gun Violence.” Download and review the perspectives from a broad spectrum of educators from all 50 states.
Cyberbullying is Experienced by Majority of Teens
Digital connections between friends and peers has a dark side: online or electronic harmful or harassing images or text, also known as cyberbullying. The Pew Research Center released a survey demonstrating the pervasiveness of teen cyberbullying. Download and read this study’s intriguing findings, including the most common forms of on-line harassment, and what teens think about teacher and parental responses to cyberbullying.
Federal Commission on School Safety Issues Final Report
The Federal Commission on School Safety was formed in early 2018 to provide meaningful and actionable recommendations to keep students safe at school. On December 18, 2018, the Commissioners presented their final report to the President, offering a holistic approach to improving school safety that serves as a resource guide for educators, law enforcement, health professionals and families. Read the report to learn the findings and recommendations.
Serving Homeless Students 2018 Update: McKinney-Vento Act Self-Audit Checklist & Best Practices for School Districts
Homeless children enrolled in public schools have nearly doubled in less than a decade. School districts need to know how to meet the needs of these children by removing barriers to enrollment and adopting policies to promote student success under the McKinney-Vento Homeless Assistance Act. This updated checklist provides school districts with the current requirements in order to comply with McKinney–Vento.
Department of Education Revises Its Civil Rights Investigation Processes
The U.S. Department of Education’s Office of Civil Rights released a revised Case Processing Manual (CPM) on November 19, 2018. The CPM sets forth the procedures OCR uses with respect to investigations into violations of the civil rights laws that OCR enforces. Among the key changes are a reversal of March 2018 policies that (1) eliminated appeals from rulings of insufficient evidence that a violation occurred and (2) allowed OCR to dismiss cases deemed an “unreasonable burden” on OCR resources. Schools should carefully consider these and other important changes to the CPM when responding to OCR complaints. Read about these changes as well as others by downloading the revised CPM.
Proposed Title IX Rule concerning Sexual Harassment and Assault Released for Public Comment
The U.S. Department of Education released its proposed revisions to the Title IX Rule after more than a year of research, deliberation and input gathering. The stated goal for the revisions is to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes. The Department issued summary of the proposed revisions. Read the summary to become familiar with the potential changes to handling sexual harassment and assault investigations and grievance proceedings.
Equal Access to Education for Undocumented Students Checklist 2018 Update
In 2017, the Federal government significantly stepped up immigration enforcement and rescinded DACA. These actions have caused school leaders to question the current status of school district obligations to educate undocumented students. SLRMA created this updated checklist to help school districts navigate these recent developments in order to make sure policies and procedures are compliant with federal law.
Protecting FERPA rights when using Third-Party Educational Services
The U.S. Department of Education issued a guidance letter clarifying student and parental rights under the Family Educational Rights and Privacy Act (FERPA) when a school uses online third-party service providers to deliver all or a portion of an educational program. This discussion offers a summary of important points of the guidance for school districts to know for compliance with FERPA when using third-party educational services.
National Public Opinion Poll Results on K-12 School Security
The 2018 PDK Poll of the Public’s Attitudes Toward the Public Schools is out – and it shows that parents do not feel confident regarding student safety. Read the full report on the school security poll results, which touch on topics such as training and arming teachers, armed police in schools, and mental health screening.
Marjory Stoneman Douglas Students file Federal Civil Rights Suit
On July 11, 2018, fifteen student survivors of the Marjory Stoneman Douglas High School shooting filed a lawsuit against Broward Schools Superintendent Robert Runcie and several other government entities and officials, claiming violation of Federal civil rights under 42 U.S.C. § 1983. This lawsuit is the first Federal action arising out of this shooting incident.
Students with Disabilities Compliance: ADA & Rehabilitation Act Checklist 2018 Update
Navigating the laws related to students with disabilities can be daunting. Does your school district know how to handle the myriad issues that can implicate students’ right under the ADA and the Rehabilitation Act? This updated checklist will greatly assist school districts to provide for student with disabilities and help avoid government agency investigations and private lawsuits brought by parents or guardians.
Active Shooter Response Programs for Schools
The school shooting incidents of 2018 in Santa Fe, Texas and Parkland, Florida underscore the importance of school preparedness for active shooters. FBI statistics show that over 21% of active shooter incidents in the U.S. between 2000 to 2016 have involved educational settings, so school districts may consider rethinking their approach to handling active shooter incidents. ASIS International has published a white paper that discusses the various types of active shooter programs, methods of identifying and preventing potential attacks, target hardening in classrooms, and the pros and cons of arming teachers.
Data Highlights on School Climate and Safety in Our Nation's Public Schools
In April 2018, the U.S. Department of Education Office for Civil Rights (OCR) released the 2015-16 Civil Rights Data Collection (CRDC) report on School Climate and Safety. The data in the CRDC comes from surveys completed by 17,300 public school districts and 96,400 public schools and educational programs.
Department of Education Free Appropriate Public Education Q&A
The U.S. Department of Education recently issued a Questions and Answers document concerning the U.S. Supreme Court’s decision in Endrew F. v. Douglas County School District, which clarified the scope of the IDEA’s FAPE requirements. The Q&A document discusses the decision and the ramifications for school districts in applying the standards set forth in the Court’s decision.
Indicators of School Crime and Safety 2017
In March 2018, the National Center for Education Statistics and the Bureau of Justice Statistics released their annual report examines crime occurring in schools and colleges. This report presents data on crime at school from the perspectives of students, teachers, principals, and the general population. The report covers topics such as victimization, bullying, school conditions, fights, weapons, the presence of security staff at school, availability and student use of drugs and alcohol, student perceptions of personal safety at school, and criminal incidents at postsecondary institutions.
Transgender and Gender Non-Conforming Student Checklist 2018 Update
Transgender and gender non-conforming students’ rights came to the forefront several years ago, and since that time, many significant developments in the law and government policies have occurred. Are you certain that your school district is appropriately meeting the needs of transgender students in your schools? SLRMA has created this updated checklist for school districts to evaluate, review, and if necessary, change existing policies regarding transgender and gender non-conforming students to be in compliance with current policies and practices.
Student activism after Parkland, Florida school shooting and First Amendment considerations
After the February 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida, students across the country took to the streets and scheduled school walkouts. Such demonstrations highlight the need to understand students’ First Amendment rights. This discussion provides crucial considerations for school districts in addressing student activism.
School District Employee Speech and First Amendment Self-Evaluation Checklist
The First Amendment as applied to public school districts is as complex as the ways school districts interact with constituents. How far does a school district’s ability to control speech of its employees go? Must a school district permit its football coach to take a knee during National Anthem? What about if a teacher talks politics in biology class? What about a teacher’s speech outside of the classroom? This new self-evaluation checklist addresses one particular issue in the First Amendment kaleidoscope: freedom of speech when the school district is acting as an employer.
Due Process Requirements for Out-of-School Suspension – Self-Audit Checklist and Best Practices
When a school initiates disciplinary proceedings against a student such as out-of-school suspension, a student’s right to due process is invoked. Not affording students appropriate due process can have significant legal consequences. To help school districts follow the right due process procedures, SLRMA presents a new tool for members: the Due Process Requirements for Out-of-School Suspension Self-Audit Checklist and Best Practices. This new checklist provides a systematic approach for discipline incidents, as well as guidance on creating positive climates and avoiding behaviors that lead to disciplinary action.
U.S. Department of Education Changes Course on Title IX Responsibilities for Sexual Misconduct
On September 22, 2017, the U.S. Department of Education Office for Civil Rights issued a Dear Colleague Letter withdrawing the statements of policy and guidance reflected in two key documents about Title IX and sexual violence issued under the Obama administration: the Dear Colleague Letter on Sexual Violence dated April 4, 2011, and the Questions and Answers on Title IX and Sexual Violence, dated April 29, 2014. This discussion summarizes the policy change and explains the implications for school districts.
Stacy Fry, et vir, as next friends of minor E.F. v. Napoleon Community Schools
The legal rights of students with disabilities are complex and interconnected. In this recent decision, the U.S. Supreme Court addressed these rights with regard to a student with profound physical limitations who was not allowed to have her service dog at school. Download the case summary of this decision to read about the potential ramifications for your school district.
Deferred Action for Childhood Arrivals (DACA) program rescinded
On September 5, 2017, the Department of Homeland Security (DHS) issued an official memorandum rescinding the Deferred Action for Childhood Arrivals (DACA) program, which allowed certain individuals to receive deferred action from deportation and eligibility for temporary U.S. work permits. The change has impact across many U.S. employers, including school districts. This discussion offers a summary of the key aspects for employees covered by DACA and their employers.
Cybersecurity & Privacy Risk Management for Cloud Computing – Self-Audit Checklist and Best Practices
The invention of cloud computing services significantly altered how organizations retain and access collected data. Like many organizations, school districts can put cloud computing services to powerful use. But school districts have legal obligations to protect data, and cloud computing poses specific challenges. To help school districts meet these obligations, SLRMA has created the Cybersecurity & Privacy Risk Management for Cloud Computing – Self-Audit Checklist and Best Practices. Download and use this tool to help your school district minimize the risk that accompanies cloud computing.
U.S. Department of Education Scales Back Scope of OCR Investigations
In June 2017, the Office of Civil Rights (OCR) released a new directive that represents a significant departure from past OCR investigation practices. This discussion provides an overview of the changes and how the changes will impact current and future OCR investigations.
Sexual-Orientation Discrimination: What School Districts Need to Know
In April 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court in the country to hold that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees and job applicants based on their sexual orientation. This discussion reviews the Seventh Circuit’s decision in Hively v. Ivy Tech Community College of Indiana, and focuses on the implications for school districts’ policies and procedures.
Endrew F. ex rel. Joseph F. v. Douglas County School District
In the first major decision on special education in 30 years, the U.S. Supreme Court has weighed in on school districts’ obligations under the IDEA. Download this summary to read the facts of this case, learn the Court’s findings and the likely impact of this decision going forward.
Electronic & Information Technology Accessibility Self-Audit Checklist
School districts use exciting and helpful online and technology-based resources to teach students and to reach parents and the general public. However, failing to provide proper access to such resources for those with disabilities can cause legal problems for school districts. To address this growing compliance challenge, SLRMA presents a brand new tool for members: the Electronic and Information Technology Accessibility Self-Audit Checklist and Best Practices. Download this new, comprehensive checklist that provides practical guidance on how to approach accessibility issues and bring your school district up to current standards.
Brinsdon v. McAllen Independent School District, Yvette Cavazos, and Reyna Santos
Classroom assignments can sometimes create unintended controversy. Download and review this recent case to learn how a high school Spanish class assignment to recite the Mexican Pledge of Allegiance garnered national media attention and led to a lawsuit from a student.
Electronic Data Self-Audit Checklist, 2016 Update
School districts, like most organizations, produce an overwhelming amount of electronic data. Knowing what to save and how to save it can be very challenging. To assist school districts get a handle on managing their electronically stored information, SLRMA presents the Electronic Data Self-Audit Checklist, 2016 Update. Part I of the Self-Audit Checklist focuses on inventory and retention policies. Part II addresses data management for potential litigation, during litigation, and after litigation has concluded. Download this Checklist and review alongside your current policies to ensure your district has clear and consistent practices and procedures in managing electronic data.
Create an Anti-Bullying Culture through Student Change Agents
Researchers from Princeton, Rutgers and Yale produced a curriculum that harnesses the power of “student influencers” to reduce conflicts between students, and thereby fosters a student culture that frowns upon bullying behavior. Based upon a ground-breaking, large-scale field experiment in New Jersey public schools, this open-source curriculum is designed for the middle school level and contains step-by-step guidance for implementation. Download the curriculum material below.
Ziegler v. Martin County School District & Jensen Beach High School
School dances, especially Prom and Turnabout, make for great high school memories. Nonetheless, administering dance events can present challenges, as school officials at a district in Florida discovered when a large group of students arrived at a high school Prom in a “party bus.” Download and review this case to learn important points on handling suspected student alcohol consumption.
U.S. Department of Education Announces Actions to Address Religious Discrimination
In July, the U.S. Department of Education announced several actions intended to address religious discrimination and promote inclusive school environments. This discussion provides an overview of these recent Department of Education actions as well as links to various helpful resources, fact sheets, and webpages.
Police in Schools: Guidance on School Resource Officer Programs
On September 8, 2016, the U.S. Department of Justice’s Office of Community Oriented Policing Services and the U.S. Department of Education issued a non-binding regulatory guidance – a rubric named the Safe School-based Enforcement through Collaboration, Understanding and Respect (“SECURe”). Police agencies receiving federal funding for hiring resource officers are required to follow SECURe. However, the hope is that school districts and police agencies will use SECURe to strengthen and assess their School Resource Officer Programs. Download the Dear Colleague letter and SECURe rubric here.
Beyond Bathrooms: New Guidance Regarding Transgender Students Addresses FERPA Requirements
The U.S. Department of Education and Department of Justice recently weighed in on the obligations of school districts, colleges and universities to provide civil rights protections for transgender students. On May 13, the Departments issued a Dear Colleague Letter that summarizes the responsibilities of school districts, colleges and universities that receive federal financial assistance under the Departments’ interpretation of federal law, including Title IX of the Education Amendments of 1972 and the Family Education Rights and Privacy Act. This discussion focuses on the Dear Colleague Letter's guidance pertinent to compliance with FERPA.
K.R. v. Huber Heights City Schools Board of Education
School may not be in session yet, but schools sports are already in full swing. Team sports are a great way for students to build muscle and character. But are you ready for when team dedication goes wrong? Read on to find out what happened when one school board was confronted with student-on-student sports team hazing.
New EEOC Guidance on Transgender Bathroom Access
Given recent media attention surrounding the Federal Government’s policy on transgender students’ use of school bathrooms and locker rooms, many employers are wondering about their legal obligations regarding bathroom access for transgender employees. Earlier this month the Equal Employment Opportunity Commission (EEOC) released a “Fact Sheet” stating the Commission’s position on the matter.
Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964
"Transgender" refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.
Dear Colleague Letter on Transgender Students Notice of Language Assistance
Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance...
Addressing Intellectual Property Issues: Self-Audit Checklist and Best Practices for School Districts
Schools are increasingly becoming entangled with potential intellectual property issues which may include the use of a mascots, the use of material obtained from the internet and the use of outside vendors to create original works. All of these common activities can result in costly litigation over the ownership and use of that material. Given the difficulty of navigating these issues, SLRMA is pleased to provide its members with Addressing Intellectual Property Issues: Self-Audit Checklist and Best Practices for School Districts. This Checklist will provide your school district with an overview of the various intellectual property rights that schools can potentially trigger while serving their students and community.
Fair Labor Standards Act - Critical Update
Within the next few months, the Department of Labor (“DOL”) is planning to issue new rules that will significantly expand the number of employees who are eligible for overtime under the FLSA. Now is the time for school districts to consider taking the following steps to prepare for the rule changes and it is unclear how much time DOL will give employers to comply with the new rules, but it could be only a few months.
G.G v. Gloucester County School Board - 2016 WL 1567467 (U.S. Ct. App. 4th Cir)
In the first of its kind case interpreting Title IX, the Federal Court of Appeals for the 4th Circuit ruled that requiring a transgender student to use the bathroom corresponding to the student’s biological gender, rather than the student’s gender identity, violated Title IX. Download and review this case today to review the law as it currently is being interpreted and applied by the federal government.
Compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973: Self-Audit Checklist and Best Practices for School Districts: Special Topics Part 2
This part of the SLRMA’s Self-Audit and Best Practices is intended to assist your school to assess special topics that may arise when complying with Title II and Section 504, such as service animals and athletics.
In light of OCR and DOJ’s recent enforcement activities and guidance addressing students with disabilities, school districts should reflect on their compliance with their legal obligations. Although both federal, state, and local laws may require districts to address the needs of students with disabilities, this checklist focuses on federal law, which provides the framework that the OCR and DOJ will use when determining whether a school district is in compliance with applicable federal law. This introduction briefly describes key federal laws addressing the protection of individuals with disabilities, the definition of a “disability” under federal law, and the scope of OCR and DOJ’s recent guidance addressing students with disabilities.
Compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973: Self-Audit Checklist and Best Practices for School Districts Part 1
Navigating the laws that protect these students with disabilities presents a unique challenge. The U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice are increasing their efforts to enforce these laws and have initiated actions against schools throughout the nation. To help schools navigate these challenges, SLRMA is pleased to present Part 1 of its Compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973: Self-Audit Checklist and Best Practices for School Districts. Download today and review your policies and procedures to ensure you are in compliance.
Educating and Evaluating the English Language Learner: Self-Audit and Best Practices Part 2
SLRMA is pleased to present Part 2 of its English Language Learner Services and Education: Self-Audit Checklist and Best Practices for School Districts. This part will assist your school district in assessing the efficacy of educating and evaluating the English Language Learner. We at SLRMA believe this checklist and best practices, when used in conjunction with Part 1, will enable your school district to maintain an effective ELL program consistent with the requirements of the applicable law.
The federal government is taking a closer look at districts’ ELL programs and their efficacy. By reviewing your school’s program now prior to the 2015-2016 school year, your district will be that much further ahead and your program will not get lost in the translation should an audit be undertaken.
English Language Learner Services and Education: Self-Audit Checklist and Best Practices for School Districts Part 1
With the increasing number of ELL students being enrolled in public schools, school districts must ensure students with limited English proficiency can meaningfully participate in their educational programs and services as required by Title VI of the Civil Rights Act of 1964. In January of this year, the U.S. Department of Justice’s Civil Rights Division and the U.S. Department of Education’s Office for Civil Rights jointly issued a Guidance to assist school districts and public schools with meeting their legal obligations to ELL students. It is clear these government watchdog groups are closely monitoring schools’ education of ELL students to ensure compliance with federal requirements.
To assist your school, we are pleased to provide SLRMA’s English Language Learner Services and Education: Self-Audit Checklist and Best Practices for School Districts. The Checklist and Best Practices will be issued in two parts: Part 1 will address your school’s English language learner services and policies. Part 2, addresses the requirements of educating and evaluating the English language learner. Download now and begin the review of your ELL policies before your school becomes the subject of an investigation.
Doe v Prince George County (Title IX as it applies to bullying)
Schools must be prepared to properly document and manage bullying claims. In this recent case from the federal appellate court in Maryland, The Board of Education of Prince George’s County successfully defeated charges that it violated Title IX by properly documenting its escalating response to the alleged bullying incidents. The appellate court held that the board’s response to the bullying was not “clearly unreasonable” and, therefore, did not demonstrate deliberate indifference. Read this case now to fully appreciate the elements of Title IX as it applies to bullying and how your school, in conjunction with SLRMA’s Bullying and Harassment: Identification, Investigation and Remediation Self-Audit Checklist and Best Practices for School Districts, can avoid liability for bullying.
Munich Re Provides New Insights into Managing School Violence
March 25, 2015
In in its latest risk management newsletter, Munich Re provides guidance to schools on managing school violence. Several states have enacted laws that address arming school staff to help stave off violence in schools. In its newsletter, consultants at Munich Re provide an overview of these laws, the federal laws and the potential liability for arming teachers. The newsletter also provides potential alternatives to arming teachers. Finally, the newsletter outlines a series of student behavioral warning characteristics that can alert school administrators as to whether a student will carry out a threat of violence. Download and read today to stop the violence before it starts.
Bullying and Harassment: Identification, Investigation and Remediation Self-Audit Checklist and Best Practices for School Districts
In August 2013, the National Center for Education Statistics found that nearly a third of the students experienced some sort of bullying and almost 10% of the students experienced cyber-bulling. The U.S. Department of Education’s Office for Civil Rights (“OCR”) has taken notice and is stepping up its investigation of bullying and harassment at schools across the nation. A school that fails to appropriately identify, investigate and remedy incidents of bullying or harassment may face consequences directly from the OCR and can be referred to the U.S. Department of Justice for civil rights violations.
Don’t let your school be a target. Download SLRMA’s pdf Bullying and Harassment: Identification, Investigation and Remediation Self-Audit Checklist and Best Practices for School Districts (172 KB) now to ensure your policies and procedures are in place to properly address bullying and harassment.
Department of Education Guidance on use of online educational services
Hogan Lovells has produced a memorandum on the Department of Education's Guidance on whether the use of online educational services and mobile applications complies with student privacy laws. Review this memo to see if your district's use of online educational services comport with the Department of Education's suggestions.
Moreover, this guidance from the U.S. Department of Education provides a good opportunity to review SLRMA’s School District Use of Cloud Computing Services Self-Audit Checklist and Best Practices to ensure that your district is complying with Federal privacy law.
Protecting Student Privacy While Using Online Education Services: Model Terms of Service
Is your school district protecting students’ privacy while using online educational tools? On February 26, 2015, the U.S. Department of education issued a guidance regarding school districts’ use of online educational services. Download Protecting Student Privacy While Using Online Education Services: Model Terms of Service. Hogan Lovells has produced a Memorandum on this guidance to assist our members in reviewing their own use of online educational services. Moreover, this latest guidance from the U.S. Department of Education provides a good opportunity to review SLRMA’s School Districts Cloud Computing Services Self-Audit Checklist to ensure that your district is complying with federal privacy law.
Reifinger v. Parkland School District 2015 WL 509557 (3rd Cir. 2015 – Pennsylvania)
February 9, 2015
The Third Circuit Court of Appeals determined that a claimant who raises an age discrimination claim must establish that age was the “but for” reason for the discrimination or the adverse employment action. In addition, the court defined “adverse employment action” and found that “constructive discharge” must be the result of reasonably intolerable conditions. Read this case today to ensure your district knows the elements of an age discrimination claim so as to avoid this area of potential liability.
Federal Communications Commission Adopts New Rules for the E-Rate Program
In its new client memorandum, Hogan Lovell attorneys outline the updated rules governing the schools and libraries universal service support program known as E-rate recently passed by the Federal Communications Commission (FCC). These rules significantly increase the size of the funding available to eligible schools and libraries for purchasing advanced telecommunication services. School should take advantage of these rules now to ensure equal access to the funding, rebates and services that are critical to providing quality education to students.
Bell v. Itawamba County School Board 2014 WL 7014371 (5th Cir. 2014 – Mississippi)
A federal appellate court has ruled that a school cannot expel a student for creating and posting a violent rap song without showing a substantial disruption or a “true threat.” The failure of the school to present any evidence that the song ever reached campus or otherwise caused the intended “victims” in the song to become fearful for their safety defeated the school’s attempts to justify the expulsion of the student. Read about this case now to ensure your district’s good intentions do not result in a violation of a student’s constitutional rights.
Hogan Lovells’ Overview of The Office For Civil Rights’ Warnings and Additional Guidance on Schools’ Obligations to Provide Equitable Access to Education Resources
The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently issued another Dear Colleague Letter addressing a school’s obligation to provide equal access to educational resources (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-resourcecomp-201410.pdf). In addition to this Dear Colleague Letter, the OCR also produced a three part guidance package to meet the obligations to provide students with equal access to education resources (http://www2.ed.gov/about/offices/list/ocr/resourcecomparability.html). The thrust of the OCR’s letter and guidance package is based on the landmark case of Brown v. Board of Education (1954), wherein the U.S. Supreme Court recognized that education “is a right which must be made available to all on equal terms” and not subject to discrimination based on race, color, or national origin. The OCR is stepping up its review of whether schools are meeting their obligations. We encourage our members to review this Hogan Lovells’ memorandum and the corresponding letter and guidance package now so your school may proactively assess its policies and practices in allocating education resources. The time to perform this review is now to avoid a finding that your school’s is providing separate and unequal education to its students.
Best Practices and Policies for Serving Transgender and Gender Non-conforming Students – Extracurricular Activities
On June 5, 2014, the Atherton High School in Louisville, Kentucky, passed an anti-discriminatory policy with respect to transgender students that was immediately challenged. The policy was upheld on appeal. On September 5, 2014, the Janesville (Wisconsin) School Board adopted a policy allowing transgender students to use the bathroom and locker room of the gender with which they identify if it's OK with their parents and principals. As reported in May of this year, the U.S. Department of Education’s Office for Civil Rights announced that it will uphold Title IX applicable to transgender students.
SLRMA is pleased to provide Best Practices and Policies for Serving Transgender and Gender Non-Conforming Students – Extracurricular Activities to its members. In conjunction with the Transgender and Gender Non-Conforming Student Practice and Policy published this year in May, we at SLRMA hope you will use this tool to review your school’s own policies.
Scheick v. Tecumseh Public Schools, 766 F.3d 523 (6th Cir. 2014 – Michigan)
In this recent Federal appellate case, the court provides an outline of the necessary elements regarding the “but for” causation necessary for age discrimination cases. It further discussed the types of evidence that both direct and circumstantial evidence may be used to establish discrimination, but a plaintiff need not provide both types of evidence to prove its case. Read this case to learn more of the proper procedures that your district should use when seeking to terminate an employee.
Vergara v. California, No. BC484642
Hogan Lovells’ new client memorandum on this trial court decision is a must read. Plaintiffs in this case charged that 5 statutes governing teacher employment (tenure, seniority, etc.) violated the state constitution’s guarantee of equal educational opportunity. The trial court found ruled in the plaintiffs’ favor. The court found that the tenure and seniority system imposed a real and appreciable impact on the student’s fundamental right to an education because it allowed grossly ineffective teachers to continue teaching and undermine the ability of a child to succeed. Although the opinion has been criticized in some quarters, Secretary of Education Arnie Duncan has praised the decision. Districts should read this case now to understand that similar challenges may be raised in their state.
Carmichael v. Galbraith
2014 WL 2767590 (5th Circuit Court of Appeals)
In June of this year, the 5th Circuit Court of Appeal determined that Title IX applies student on student, same sex, harassment. As more and more of these cases are being litigated, this case summary will provide you with the analysis applied to courts on why Title IX applies to this sort of bullying. Finally, the recent case law makes clear that courts and parents are less willing to take a laissez-faire attitude in light of these bullying incidents.
Lane v. Franks, 134 S.Ct. 1533 (U.S. Supreme Court)
In this decision, the U.S. Supreme Court clarified that governmental employees’ speech, pursuant to a subpoena before a jury, is protected by the First Amendment. In this case, a governmental auditor uncovered fraud committed by a state representative. The auditor was subsequently fired after being called to testify against the representative. The governmental entity claimed it was entitled to fire the employee because the testimony was within the scope of his employment. The U.S. Supreme Court summarily rejected that argument. Instead, the Court found that the employed was speaking on a matter of public concern and, therefore, entitled to first amendment protection. Read it now to understand parameters of employee speech rights.
Rights of Transgender Students (Hogan Lovells Memo)
The Supreme Court of Maine recently determined that a school violated the rights of a transgender student when it denied her access to the female washroom. More and more, courts are finding that a school cannot discriminate against transgender students and must make accommodations. Hogan Lovells addresses this case and schools’ obligations to accommodate such students. Doe et al. v. Regional Sch. Unit 26, 2014 WL 325906 (January 30, 2014) now to learn about this important issue.
Questions and Answers on Title IX and Sexual Violence
The U.S. Department of Educations’ Office of Civil Rights recently advised that it will consider discrimination against transgender and gender non-conforming as a violation of Title IX. As a consequence, the Office will open conduct investigations regarding reports of such discrimination.
Hayden v. Greensburg Community School Corporation
Is your apparently benign code of conduct actual violating the law? In this recent Federal case from Indiana, a male student successfully sued the school for enforcing a personal appearance policy against boys that was not equally enforced against girls. Given that the enforcement of the policy disparately impacted the boys rather than the girls, the court found that school violated Title IX and engaged in sex discrimination by only selectively enforcing the “hair length” policy against boys without otherwise providing a legitimate reason for not enforcing the policy against girls.
School Districts Cloud Computing Services Self-Audit Checklist
The U.S. Department of Education’s Privacy Technical Assistance Center has recently published a guide to online education services and indicated that it will be paying closer attention to schools’ use of cloud computing. The use of “the Cloud” and outside vendors to manage student data can run afoul of federal privacy law and a comprehensive review of your school district’s use of such services is necessary to protect the district from liability. To assist, SLRMA is pleased to provide its members with its School District Use of Cloud Computing Services: Self-Audit Checklist and Best Practices.
Protecting Student Privacy While Using Online Educational Services
The U.S. Department of Education’s Privacy Technical Assistance Center provides guidance to schools in managing their issues involve student data. Recently, the Center issues its guide on cloud computing: Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices.
Using a “FAQ” approach to helping schools identify the practicalities and pitfalls of using online education services, the guide is a practical risk management tool your school can use to help protect itself in using student data.
Associated Reading: pdf Hogan Lovells Memorandum on the Education Department’s Guidance (42 KB)
Hogan Lovells Memorandum on the Education Department’s Guidance
To further help your school understand and implement the guidance put forth by the U.S. Department of Education and further enhance your use of SLRMA’s pdf School Districts Cloud Computing Services Self-Audit Checklist (51 KB) , the Hogan Lovells law firm has prepared and permitted us to post a memorandum highlight the guidance.
Munich Re on Restraint Seclusion
Schools are using various methods to discipline students. However, improper and sometimes dangerous methods of discipline are leading to tragic results and liability. Recently, Munich Re published its white paper on the use of Restraint and Seclusion in Schools to delineate the principle a school should use in developing policies and procedures to implement such techniques. This memorandum is located for download here.
In conjunction, SLRMA members should also use SLRMA’s pdf Disciplining Students with Disabilities Self-Audit Checklist/Best Practices and the Use of Restraint and Seclusion (495 KB) published last year. This checklist is the perfect complement the Munich Re memo to assist your district in avoiding liability for improper use of restraint and seclusion.
School District Seeks Supreme Court Review of School's Attempted Ban of “I ♥ Boobies” Bracelets
In our August case report, SLRMA reported on the 3rd District decision B.H. ex rel. Hawk v. Easton Area School Dist. wherein the court ruled the school violated the students’ First Amendment Rights for banning and punishing the student for wearing “I ♥ Boobies” bracelets. On December 3, 2013, the school district filed a Writ of Certiorari with the U.S. Supreme Court appealing the decision. In this memo, Hogan Lovells’ attorneys discuss this case, school free speech cases and the potential impact on school’s ability to monitor and manage student speech.
District Social Media Policy, Part 2: Administrator/Teacher Social Media Policies Checklist
How is your school managing your employees and administrators use of public and personal social media? Claims arising out of a school’s intentional and inadvertent use of social media is on the rise. In the second part of our District Social Media Policy: Administrator/Teacher Social Media Policies, SLRMA provides your district the tools to manage your district’s use of social media and help prevent liability when you need it most, before it starts.
Click the download button to obtain your district’s copy of the District Social Media Policy, Part II: Administrator/Teacher Social Media Policies which provides the essential tools to create, assess and manage social media resources of the school and its employees while also providing a best practices guide for addressing social media issues.
District Social Media Policy, Part 1: Student Social Media Policies Checklist
Consider some real scenarios regarding students’ use of social media determine how your school would respond:
- A student makes several posts on his MySpace page that he will kill not only the people he hates, but a few more random;
- A group of students create a website chronicling daily life at school that contains racist and offensive comments and makes sexually explicit comments about female classmates; and
- A high school student creates a fake profile of her principal, using the principal’s picture from the school website, which used crude content, disparaging remarks about the principal and his family and made allegations regarding his sexuality.
Today’s students have been raised with the ability to use computers from their birth. As a consequence of the growth of social media sites, the students’ technical sophistication more often than not outpaces their maturity and ability to use such tools responsibly. The statistics from 2012 are staggering: monthly active users on Facebook total nearly 850 million; there were 175 million tweets sent from Twitter every day in 2012; and more than 5 million photos are uploaded to Instagram everyday. Students’ personal use of social media has already begun to impact schools, through cyber-bullying, threats of violence, disrespect of teachers and administrators, which have resulted in suspensions but also has resulted in lawsuits for the school’s response to students’ use of social media. Districts are forced to walk a fine line between harnessing students’ use of social media to further the education mission while simultaneously not violating their rights to use such media.
To help schools address the students’ use of social media, SLRMA has prepared its District Social Media/Electronic Communication Practice and Policy: Self-Audit Checklist and Best Practices on the Use of Social Media and Electronic Communication for School Districts. In this Part 1, immediately available for download, we address Student Social Media Policies. Coming later this year, in Part 2, we address Administrator Social Media Policies. The use of this checklist will immediately help your school contend with an already contentious issue.
Goudeau v. East Baton Rouge Parish School
Determining whether a teacher’s public criticism of a principal is protected Free Speech or conduct subject to discipline can be difficult. In this case, a Teacher was transferred to another school after she argued against and ultimately refused to change children’s grades under a policy instituted by the Principal. Once transferred, Teacher sued Principal for the alleged violation of the First Amendment Rights and wrongful termination. Ultimately, the court determined the Principal was not entitled to immunity for these actions because the teacher’s speech implicated a matter of public concern. Read this case now to ensure your district knows the contours of this employment issue.
B. H. v. Easton Area School District
The Federal Court Appeals in Pennsylvania recently found that a school violated its students’ First Amendment rights by banning a bracelet encircled with the words “I ♥ boobies (Keep a Breast)”. Although the court found that the bracelets were ambiguously lewd, it also found that they commented on a social of political issue. As consequence, the First Amendment prevented the school from taking adverse action against the students for wearing the bracelets to school. Download and read the summary now to learn when your district can, and cannot, ban ambiguously lewd student speech.
Vance v. Ball State
The U.S. Supreme Court issued its decision in Vance v. Ball State which further clarified what constitutes a “supervisor” under Title VII. In this case, the court held that an employer can be held vicariously liable under Title VII for the acts of its supervisors, i.e., those employees who are empowered to take “tangible employment actions: hire, fire, reassign and other actions resulting in substantive employment changes. However, the U.S. Supreme Court made equally clear that even if the employee does not have such power, courts are entitled to see the employee as a supervisor if the employer relies on the employee to make those substantive employment decisions. Read the case summary now to see how this decision may impact your school district.
Pregnant and Parenting Students under Title IX (Hogan Memo)
According to the National Center for Education Statistics, 27.8% of sophomore female students who dropped out of high school did so because of pregnancy. Recently, the U.S. Department of Education’s Office of Civil Rights (“OCR”) issued its dear colleague letter and accompanying pamphlet regarding the rights of pregnant and parenting students to educational opportunities under Title IX. It is clear, the OCR is looking more closely at school’s treatment of and efforts on behalf of pregnant and parenting students. Now is the time to download this article and accompanying material to review your district’s policies and procedures in light of the OCR’s suggestions.
Use of public benefits or insurance with IDEA
On June 11, 2013, The U.S. Department of Education’s Office of Special education and Rehabilitation Services recently released its model parental notification under the Individuals with Disabilities Act pursuant to regulations promulgated in February, 2013. To assist school district, Maree Sneed and Esther Haley Walker of Hogan Lovells provides the following client memo explaining a school’s obligations and a copy of the model written notification.
Fischer vs University of Texas at Austin
In this new Hogan Lovells’ brief, Maree Sneed and David Ginn discuss the recent U.S. Supreme Court decision in Fisher v. University of Texas at Austin, which requires schools that consider race in admissions must affirmatively demonstrate that its consideration is necessary to achieve the educational benefits of diversity. Although it leaves existing doctrine largely intact, its impact on K-12 education may not come into full focus for some time.
Douglas v. Rochester City School District
Isolated incidents of offensive and boorish behavior that is not perpetrated because a hostility to race of gender will not support hostile work environment claims. In this case from The Federal Court of Appeals in New York, the court clearly establish the elements of a successful claim and describes the necessary elements of a retaliation claim. This case will help your school district to understand the elements of such a cause of action to derail such claims before they manifest.
Fair Labor Standards Act: Self-Audit Checklist For School District Employers, 2013 Update
Since January 2013, the U.S. Department of Labor has collected over $3.6 million in back wages and penalties from employers who failed to track overtime, improperly classified non-exempt employees and failed to maintain the appropriate paperwork. The Department of Labor’s time spent investigating and securing these awards has increased by over 56%. What is your school district doing to avoid becoming a target?
G.C. vs. Owensboro Public Schools
Schools need to remain vigilante that their policies and procedures are compliant with Constitutional principles. In this case from the Federal Court of Appeals overseeing Kentucky, the Court determined the school violated the a student’s Due Process rights when it expelled him without the benefit of a hearing. In addition, the school searched his phone without justification in violation of the student’s 4th amendment rights. This case provides the elements schools need to look at to see if a due process hearing is necessary and what is needed to justify a search of a student’s belongings.
Disciplining Students with Disabilities Self-Audit Checklist/Best Practices On the Use of Restraint
Schools are using various methods to discipline students. However, improper and sometimes dangerous methods of discipline are leading to tragic results and liability. The U.S. Government Accounting office estimated that over 200 students have died as a result of school based seclusion and restraints between 1999 and 2009. As a consequence, school districts can face significant liability. To assist your district in avoiding such liability, download SLRMA’s Disciplining Students with Disabilities Self-Audit Checklist/Best Practices On the Use of Restraint and Seclusion right now and review your district’s procedures.
McCoy v. Board of Education, Columbus City Schools
School liability for an employee’s conduct turns on the extent to which the school has knowledge of such conduct and whether, given the conduct, the school took appropriate action. In this case, the 6th Circuit Court of Appeals for Ohio addresses the liability of a school board and a principal faced with events surrounding the molestation of a student by a teacher. The summary outlines what your district needs to know about “deliberate indifference standard” and when officials will be protected by the doctrine of qualified immunity.
Connelly v. Steel Valley School District
In Connelly v. Steel Valley School District, the Third Circuit Court of Appeals analyzed with a school’s disparate compensation scale between teachers with in-state teaching experience and those teachers with out-of-state teaching experience violated the fundamental rights protected by the U.S. Constitution. The Court ultimately held that schools can value in-state experience greater than out-of-state experience because it served the legitimate state purpose of promoting an efficient an effective school system.
Office for Civil Rights’ Guidance Requires School Districts to Provide Students with Disabilities Equal Opportunity to Participate in Athletics
This Hogan Lovells Memorandum discusses the recently released Dear Colleague Letter from U.S. Department of Education Office for Civil Rights on school districts’ obligations to provide extracurricular athletic opportunities to students with disabilities. By outlining the three lessons to be learned from the letter, Hogan Lovells help your school get a head start in reviewing your district’s compliance with these guidelines.
Avoiding Discrimination Claims When Using Criminal History in Employment Decisions: Self‐Audit Checklist
Don’t Aid and Abet Potential Discrimination Claims when Using Criminal Background Checks in Your Hiring Practices.
Criminal background checks are necessary to protect schools from becoming potential victims. However, improper and overzealous use of criminal background checks may result in inadvertent discriminatory hiring practices that can lead to liability under Title VII.
Recently, the Equal Employment Opportunity Commission (EEOC) issued its guidelines for using criminal background checks in employment decisions. The guidelines highlighted the significant increase in the number of Americans who have been through some part of the criminal justice system. From 1991 to 2007, the percentage of Americans who have served time in prison has risen from 1.8% to 3.2%. Moreover, arrest rates for African American and Hispanic men are significantly. If the incarceration continue unabated, approximately 6.6% of all persons born in the United States in 2001 will serve some time in prison during their lifetime.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000, et seq.) prohibits discrimination based on race, color, religion, sex, or national origin. Given the statistics above, a school’s otherwise neutral policy or practice in using criminal background checks may result in disproportionately more Title VII-protected groups being refused employment simply based on their criminal background. Thus, schools need to evaluate their use of criminal background checks now to ensure they are not exposing themselves to liability under Title VII.
SLRMA is pleased to offer its Self-Audit Checklist for Avoiding Discrimination Claims When Using Criminal History in Employment Decisions. This Checklist provides your school with the means to evaluate its current practices and educate your districts on potential pitfalls in the use of criminal background when make employment decisions. In anticipation of the hiring season, your school district should immediately download and follow the Checklist to avoid any accusations under Title VII.
School Compliance with Title IX For Athletic Programs: A Self-Audit Checklist
The OCR has made it clear it reads Title IX to equally apply to primary and secondary schools as it does at the collegiate level. Given the OCR’s increased interest in Title IX compliance at the high school level, SLRMA is pleased to offer its Self-Audit Checklist for School Compliance with Title IX for Athletic Programs. SLRMA’s Self-Audit Checklist will help your school district’s athletic programs comply with Title IX and help avoid fines and penalties for “unsportsmanlike conduct" failing to offer equal opportunities to boys and girls who play high school sports.
Although most people are familiar with Title IX at the collegiate level, it applies to any school that receives federal funds, including public K-12. School districts violating Title IX can be subject to regulatory enforcement action and possibly costly private civil suits for damages. To help your school, SLRMA is pleased to offer the Self-Audit Checklist for School Compliance with Title IX for Athletics Programs to help your school make the right call.
Avoiding FLSA Pay Violations Self-Audit Checklist for Substitute Teachers
The FLSA also governs how schools must handle their pay practices with respect to the hiring and use of substitute teachers. This checklist, “Avoiding FLSA Pay Violations Self-Audit Checklist for Substitute Teachers” should be used in conjunction with SLRMA’s popular FLSA Self Audit Checklist, will able to thoroughly assist your school district in avoiding FLSA pay violations and liability.
Addressing Bullying and Harassment: A District Self‐Audit Checklist
Is your school district prepared for dealing with the bullies in your schools? With bullying (including cyber bullying) incidents on the rise, school districts are becoming increasingly liable for these incidents. SLRMA’s Anti‐Bullying and Anti‐Harassment Checklist can help prevent your school from becoming a victim of bullies.
Avoiding Sexual Harassment and Retaliation Compensation Claims Self-Audit Checklist
Protecting your school district from hostile environment sexual harassment is critical to risk management. How well is your school district informed about these issues?
Determining whether or not a hostile environment based on sexual harassment is present is difficult. Use this self-checklist to determine your district’s potential exposure to such claims.
E-Discovery: School District Self-Audit, Part I
SLRMA and FLIC's 2008 Special Report: E-Discovery Self-Audit Checklist, Part I. The E-Discovery checklist addresses important protocol which school districts must take with the storage of electronic information in order to protect themselves, including proper inventory of information, consistent retention and deletion policies, and the clear publication of such policies to district employees.
Model Wellness Policy Checklist
Schools play a critical role in promoting student health and should be committed to creating a school culture that promotes and protects children’s health. This checklist will help your district meet the challenges in providing the programs and policies necessary for a healthy student body.