Civil Rights

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:

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:

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 (6^th 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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

"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.

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...

In the first of its kind case interpreting Title IX, the Federal Court of Appeals for the 4^th 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.  

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.

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. 

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. 

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.

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.

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.

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.