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.”
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.
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:
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.
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:
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.”
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.
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.
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.
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.
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.
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.