CURRENT LEGAL ISSUES FACING SCHOOL DISTRICTS

1. New York State Association of Management Advocates For School Labor Affairs (MASLA) 40th Annual Summer Conference July 17, 2017 – Lake Placid, NY CURRENT LEGAL ISSUES FACING SCHOOL DISTRICTS Jay Worona, Esq. Deputy Executive Director & General Counsel NYS School Boards Association Justin Petrarca, Esq. Scariano, Himes and Petrarca Chicago, IL

2. Recent Guidance on Undocumented Students • Plyler v. Doe – U.S. Supreme Court landmark decision (1982). • N.Y. joint guidance 2/27/17 – “Undocumented children, like U.S. citizen children, have the right to attend school full time as long as they meet the age and residency requirements established by state law.”

3. Recent Guidance on Undocumented Students • Joint guidance states the long-held SED position that law enforcement may not remove a student from school property or interrogate a student without the consent of the student’s parent – except in very limited situations.

4. Recent Guidance on Undocumented Students • Requests from immigration officials to access student education records – school districts should also “immediately consult with their attorneys, as compliance with such request through disclosure may violate FERPA.” • FERPA exceptions?

5. School Choice/Vouchers • Free Exercise Clause • Trinity Lutheran Church of Columbia, Inc. v. Comer, Director, Missouri Depart. of Natural Resources, (S.Ct. No. 15-577 June 26, 2017). • The Trinity Lutheran Church Child Learning Center, a pre-school and daycare center in Missouri, merged with Trinity Lutheran Church and operates under its auspices on church property.  The playground consists of a coarse pea gravel surface beneath play equipment.  The Center sought the replacement of the surface through the State’s Department of Natural Resources.  The Department, however, had a strict and express policy of denying grants to applicants owned and controlled by a church. As such, the Center’s application was denied. 

6. School Choice/Vouchers • Supreme Court held: The Department’s policy violated the Center’s rights under the Free Exercise Clause of the First Amendment “by denying the Church an otherwise available public benefit on account of its religious status.” • The Court noted that the Free Exercise Clause ‘“protects religious observers against unequal treatment”’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’”  That is, denying a “generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”

7. School Choice/Vouchers • The Court noted that the Department’s policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”   The court further noted that the express discrimination in violation of the Free Exercise Clause “is not the denial of a grant, but rather the refusal to allow the Church – solely because it is a church – to compete with secular organizations for a grant.” The Court concluded that the Department’s policy violates the Free Exercise Clause.

8. Enforcement by OCR Under the New Trump Administration • OCR Internal Directive Changes Investigation Procedures • On June 8, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights, reportedly sent to the agency's regional directors a memorandum (made available by ProPublico) that changes immediately some of the practices used to investigate alleged civil rights violations by public school districts. Under the new directive: • Certain types of complaints will no longer be automatically subject to review and oversight by OCR "headquarters" in Washington, D.C.; • The investigative rule requiring three years of past complaint data to assess a school district's compliance is eliminated; team leaders and regional directors will now determine what comparative data are necessary;

9. Enforcement by OCR Under the New Trump Administration • A "one size fits all" investigative approach for certain types of complaints is abandoned in favor of allowing team leaders and regional directors to make case-by-case determinations of the type and scope of evidence necessary to support a "legally sound" investigation; • "Systemic" investigations will no longer be carried out based on individual complaints absent allegations of systemic issues or unless the investigation team determines such an approach is warranted; and • "Reasonable resolutions agreements with defined, enforceable obligations . . . directly addressing the concerns raised in the individual complaint" as well as voluntary settlements are encouraged. • These changes apply to all complaints currently in evaluation or investigation, as well as newly filed complaints.

10. The Latest from the Supremes on Special Education • Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017). • Parents of kindergartener with a form of cerebral palsy sought to have their daughter’s service dog accompany her in the classroom, as recommended by her pediatrician. The school district briefly permitted the dog to accompany the student to school on a “trial basis” but required the dog to remain in the back of the room and not participate in assisting the student. After the trial period, the school district denied the request and claimed that a human aide, who was provided as part of the student’s individualized education program rendered the dog “superfluous.”

11. The Latest from the Supremes on Special Education • The parents filed a federal lawsuit against the school district alleging violations of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. A federal district court dismissed the suit, holding that under the provisions of another federal law, the Handicapped Children’s Protection Act of 1986, the parents were required to first exhaust the administrative procedures contained in the IDEA prior to bringing the suit under the ADA and Section 504. The issue before the U.S. Supreme Court was whether parents need to “exhaust” all the procedures in the IDEA before filing a lawsuit alleging discrimination.

12. The Latest from the Supremes on Special Education • The Supreme Court vacated the decision and remanded the case back to the federal appeals court to determine whether the parents were seeking redress for harms independent of any denial of the student’s rights to receive a free appropriate public education (FAPE). If they were, the exhaustion rule would not apply as a suit under a different statute, that does not seek a remedy for the denial of FAPE, does not require exhaustion under the IDEA’s procedures.

13. The Latest from the Supremes on Special Education • Endrew v. Douglas County School District, 137 S.Ct. 988 (2017). • Issue: What is the test for determining the adequacy of educational benefits conferred upon special education students covered by the IDEA? • The lower court (10th Circuit) essentially held that the instruction and services furnished to children with disabilities must be calculated to confer “some educational benefit” meaning that a child’s individualized education program (“IEP”) is adequate as long as it is calculated to confer an “educational benefit that is merely . . . more than de minimis.”

14. The Latest from the Supremes on Special Education • The United States Supreme Court rejected the lower court’s “more than de minimis” standard and stated: • When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low – the court said – would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to ‘drop out.’’ The IDEA demands more. It requires an education program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.   • The Court indicated that there is no set formula standard to determine what “appropriate” progress might look like: “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

15. The Latest from the Supremes on Special Education • The United States Supreme Court rejected the lower court’s “more than de minimis” standard and stated:   • When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low – the court said – would be tantamount to ‘sitting idly . . . awaiting the time when they were old enough to ‘drop out.’’ The IDEA demands more. It requires an education program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.   • The Court indicated that there is no set formula standard to determine what “appropriate” progress might look like: “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

16. Transgender Update • Gloucester County School Board v. G.G (4th Cir.): • School district adopted a restroom policy that limited use based on biological genders. • Lawsuit based on violation of Title IX which prohibits discrimination based on sex in education programs. • Prior OCR/U.S. Department of Education’s interpretation of regulations is entitled to deference.

17. Dear Colleague Letter • US Department of Education and Justice rescind their previous guidance that gave protections to transgender students based on gender identity. • Dear Colleague Letter: “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”

18. Transgender Update • United States Supreme court remands the case back to the Fourth Department for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice”

19. Transgender Update • Response by State Commissioner of Education and State Attorney General – (Press Release 2/23/17): reminds school districts across New York that – “irrespective of the federal government’s decision – they have independent duties under state and local law to protect transgender students from discrimination and harassment in their schools and at all school functions.”

20. Transgender Update • Whitaker v. Kenosha USD (7th Cir.): • 17 year old transgender boy, diagnosed with Gender Dsyphoria, denied access to use the boy’s restroom. • Student provides letters from his pediatrician which recommends that he be permitted to use the boys restroom. The district rejects the letters and says that the student must undergo surgical transition.

21. Transgender Update • Student demonstrated a likelihood of success on the merits of both the Title IX claim and the Equal Protection Claim. • Transgender students may bring sex-discrimination claims based on a theory of sex stereotyping (discrimination based on a failure to conform to stereotypical gender norms).

22. Transgender Update • New Guidance from OCR (6/6/17) • Reiterates that certain prior OCR guidance documents regarding transgender students have been withdrawn. • Rely on Title IX and its implementing regulations as interpreted by federal courts and OCR documents that remain in effect.

23. Transgender Update • Locker rooms . . . • Evanston Township High School District 202 – possible revisions to policy that would permit locker room access based on gender identity. • Lawsuit dropped by parent advocacy group challenging the district’s policy of accommodating a transgender student’s use of the girls’ locker room based on gender identity.

24. Issues to Consider • Participation in physical education classes, interscholastic sports & extracurricular activities • The New York State Public High School Athletic Association (NYSPHSAA) recommends a four step process for determining participation in interscholastic sports. • Student’s home school is the first point of contact. • The student & parent/guardian puts request in writing to Superintendent and Athletic Director. • The school determines eligibility to participate based on criteria it has identified. • Athletic director informs NYSPHSAA in writing of district’s decision.

25. Issues to Consider • Dress Code • District’s dress code should apply regardless of gender; enforcement of the dress code should not disproportionately impact transgender students • Filtering Software • Does the district’s filtering software prohibit access to websites with educational or supportive information for transgender students?

26. Recommendations • Educate staff, students and parents about gender identity and expression, and ensure understanding of transgender persons • Take a case-by-case approach to transgender students, within the context of ensuring equal access and opportunity, considering age, maturity, parental input, facilities available

27. Recommendations • When developing a plan for accommodating a transgender student, based on court case results, avoid requiring that the student use a single or gender-neutral bathroom or locker room • Conduct school climate surveys periodically

28. Challenges Districts Face • Discomfort of some in the community • Instances where a parent disapproves of the child’s gender identity or expression • Handling the process of transition • If the child is undecided

29. Status of the Law Title VII makes it unlawful for a covered employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of, among other things, sex.

30. Status of the Law WhileTitle VII does not explicitly include gender identity in its list of protected bases, the EEOC has interpreted the statute's provision prohibiting discrimination based on sex to also prohibit discrimination against an employee on the basis of gender identity. The EEOC's Strategic Enforcement Plan ("SEP"), adopted by a bipartisan vote in December 2012, ,lists as an enforcement priority for FY 2013-2016 “coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply". This enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII's prohibition on sex discrimination.

31. Transgender Employees 1. Demonstrate Respect According to the Transgender Law Center, transgender co-workers do not expect any special treatment. They simply want their identity to be respected. This often means they want to be addressed by the name and pronoun that reflects their gender identity. Those who are unsure of what pronoun to use are encouraged to politely ask their co-worker how they would like to be addressed. Let the transgender employee set his or her own timetable and let him or her decide how to tell co-workers (in person, by e-mail or conference call, individually, or in a group). Do not ask what someone's “real" name is. It implies that the preferred name is not real.

32. Transgender Employees 2. Recognize the Difference Between Your Personal Values and the Community Values of Your Workforce Some people have political, cultural, and/or religious objections to someone being transgender. Being polite and respectful to a transgender co-worker does not require abandoning these beliefs. 3. Respect Your Co-'Worker's Confidentiality and Privacy Many non-transgender people have a lot of questions about their transgender co-worker's gender transition. However, it is inappropriate to ask a co-worker questions about their private medical history. Do not assume that your transgender co-worker will want to discuss his/her private health care matters with you. Allow your co-worker to initiate any conversation about his/her transition.

33. Transgender Employees • Help Co-workers Who are Having Trouble with Another Employee’s Transition Sometimes a non-transgender co-worker might have difficulty showing respect to a transgender co-worker. The person may mistakenly use the transgender co-worker's old name out of habit and may need to be gently reminded about the new name or pronoun. Other times, people may have trouble separating their own personal values from the community values of the workplace. In those circumstances, it may be helpful to talk to them about how their behavior affects not only the transgender co-worker, but others as well. This will help them understand that their actions have larger consequences than they may realize.

34. Transgender Employees • Do Not Assume That Your Transgender Co-Worker Knows Everything About All Transgender Issues While some transgender co-workers may have a special interest in discussing transgender-related issues, others may not. Before discussing such issues with a transgender co-worker, make sure he/she wants to discuss these matters.