Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).
If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.
The Tustin Decision
In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA.
We typically follow the Section 504 regulations that say that if a school district complies with the IDEA it has also complied with Section 504 and the ADA. But the Ninth Circuit disagreed, finding that the IDEA sets only a floor of access to education for children with communications disabilities. Section 504 and the ADA, however, require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities, insofar as doing so does not pose an undue burden or require a fundamental alteration of their programs.
Notably, the IDEA requires that an IEP team as a whole decide whether a certain assistive technology is needed, considering any specific preference of the student or the parent. But the Ninth Circuit pointed out that the ADA requires a public entity to not only consider the student’s and parents’ preference but to give primary consideration to the requests of the individual when determining what type of auxiliary aide or service is necessary.
The OCR DCL
The DCL issued by OCR was issued jointly with the U.S. Department of Justice (DOJ) and the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS). The DCL adopts the Tustin standard that auxiliary aids or services must be provided to a student if necessary to provide equal access to the student despite his communication disability. The only exception is if the school district can prove that the auxiliary aid or service would result in a fundamental alteration in the nature of its program or cause an undue burden. The DCL does not provide any criteria for what circumstances would constitute such a fundamental alteration or undue burden, but suggests that in most cases such a burden or hardship will not exist. Like the Tustin case, the DCL also states that under Section 504 and the ADA school districts must give “primary consideration” to the preferences of the student with a speech, hearing, or vision disability or her parent in determining what auxiliary aids and services to provide. The guidance also says that if a parent or student requests a specific aid or service, it must be provided by the school district in a “timely” manner, which apparently means “immediately.” Under the DCL, it does not matter if the student’s IEP team has considered or agrees that the aids or services are required under the IDEA.
The NSBA Letter
It’s not news that the NSBA has a problem with the Tustin decision. Last year, the NSBA teamed up with two state school boards associations to ask the Supreme Court to take up and reverse the case. But in its letter, NSBA argues that OCR has made the situation significantly worse by improperly applying the standard adopted by the case to school districts across the country, even though courts outside of the Ninth Circuit have not agreed with the decision. NSBA also argues that the IEP process is essentially being replaced with parental preference, that the decision will lead to ineffective and potentially disruptive aids and services being required for students, and that schools will be administratively and financially burdened because there aren’t clear standards as to what is required.
Takeaways for School Leaders
Until OCR changes its stance, its DCL guidance will still govern its investigations of alleged Section 504 violations in school districts, so it’s important for school leaders to take note. In some cases, the services and aides a district provides a student with a communication impairment through an IEP will also satisfy the ADA. But districts should carefully consider their obligations under both Section 504 and the ADA because in some cases the statutes may require different actions.
Last week the Federal Trade Commission announced on its blog that it has updated its frequently asked questions (FAQs) about the interplay between schools and the Children’s Online Privacy Protection Act (COPPA). Although nothing in the guidance is new, it is a good reminder of the often confusing rules governing consent for online services and apps in the school context.
What is COPPA?
COPPA and the related FTC regulation implementing it generally apply to operators of commercial websites and online services (including mobile apps) directed to children under 13 that collect, use, or disclose personal information from children. Operators covered by COPPA and the FTC rule must do a number of things to comply with the rule, including providing notice to parents about what data they collect and how they use it, and obtaining verifiable parental consent, with limited exceptions, before collecting personal information online from children.
Under COPPA and the FTC rule, there are some circumstances where a school district can collect the required parental consent to avoid having to coordinate between parents and the online service providers. That issue is what the FTC FAQs address, and the FTC updated them to streamline and clarify the rules, which are often confusing to stakeholders.
The FTC FAQs
So what’s in the FAQs? Here are key takeaways for school leaders:
- Schools can consent to a website or app’s collection, use or disclosure of personal information from students, but only where they are contracting with third-party website operators to offer online programs solely for the benefit of their students and for the school system, and for no other commercial purpose. The FAQs provide the example of homework help lines, individualized education modules, online research and organizational tools, and web-based testing services as permissible types of websites and apps for which a school can provide permission. Although not addressed in the FAQs, schools should have a form in place to collect consent for the services and apps it is using so that it can show that it has obtained the necessary parental consent if needed.
- In contrast, where an operator intends to use or disclose children’s personal information for its own commercial purposes in addition to the provision of services to the school, it will need to obtain parental consent and schools cannot consent for parents.
- In order for an operator to get consent from a school, the operator must provide the school with all the notices required under COPPA and comply with other requirements of COPPA, such as deleting children’s personal information once the information is no longer needed for its educational purpose.
- Perhaps the main takeaway is that any agreement between the website or app and the school has to address the requirements of COPPA and make clear that the website or app will only use the data collected for permissible purposes. The FAQs include a set of very useful questions that school districts can ask website or app contractors to ensure that COPPA is being adequately addressed.
The FAQs also address a number of other issues, such as what notice the FTC advises should be provided to parents when a school district enters into an agreement that includes providing consent for students under COPPA. The FAQs remind schools that even if an agreement complies with COPPA, moreover, care must be taken to ensure the agreement also comports with other federal laws, such as the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), and state laws. A state law in Illinois is working its way through the legislature and will likely be passed soon, and there are already laws on the books in numerous other states.
The FTC also advises that schools not allow individual teachers to decide when they can provide consent for students under COPPA. Rather, the school or school district should determine whether a particular site’s or service’s information practices are appropriate. I agree with this advice because even though it is not required by the law, it can keep schools out of quite a bit of trouble if teachers or other staff members misunderstand the legal requirements of these laws. School districts should put in place administrative procedures explaining to staff how to obtain authorization to use a particular website with students under age thirteen.
Finally, although not addressed in the FAQs, note that although COPPA does not require applying these rules to students over age 13, there may be practical and legal reasons to consider following similar steps for older students. For instance, some websites may require parental consent for students under age 18, regardless of whether they collect information from students or not. As a practical matter, school districts may want to have procedures in place to prevent inadvertently violating the terms of service for such sites.
A recent lawsuit out of Ohio brings a local flair to what has otherwise become a relatively common story. We’ve all heard of teachers being disciplined or dismissed for posting something thoughtless online that led to community uproar. But did you ever think it would happen with a post about … milk?
My Twitter followers may have seen my retweet of the NSBA Legal Clips story about this case last week. The lawsuit, which was filed by the ACLU in Ohio, involves a former teacher, Keith Allison, who alleges he was fired by Green Local School District (GLSD) because of a message he posted on Facebook on his own time and off of school grounds. The post was made in the Summer of 2014, and urged readers to choose plant-based milk over cow’s milk. The post showed a picture of a young calf in a small crate and said:
The cruelty of separation, loneliness, and infant slaughter lingers inside each glass of cow’s milk. Your voice can help change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.
Turns out that the community GLSD serves is heavily populated with dairy farmers. Allison’s post even said “This place is five miles from my house.” Allison’s supervisor allegedly called him in after the school year began and said that teachers like himself needed to take care not to offend the agricultural community. His pay was cut, and then at the end of the year his contract was not renewed. Although he was later hired for a different position, Allison says the new position was not as good as the old, and that he feels now he must censor his speech to avoid further retaliation by GLSD.
Those who read the blog know that a public school district that disciplines or terminates an employee for off-campus, online speech has to contend with the First Amendment. Teachers and other school employees do not shed their free speech rights simply by being hired by a public school. To survive a First Amendment challenge, a school district will need to show one of the following three things:
- That the employee was speaking as a public employee, not a private citizen;
- That the employee was speaking on a matter of purely private concern, not public concern; or
- That the employer’s interest in an efficient, disruption-free workplace environment outweighs the employee’s right to speak freely on the issue.
Here, there is really no question that Allison, who was speaking on his own time and not in any manner that was compelled by his position, was speaking as a private citizen. Similarly, animal rights and the other fundamentals of veganism are matters of concern to the public, not just petty gripes or other concerns relevant only to the speaker. So this case will likely hinge on whether GLSD is able to show that its interest in an efficient, disruption-free workplace outweighs the Allison’s right to speak freely about veganism.
The unique nature of the locality, which contains a large number of dairy farmers, might weigh in the school district’s favor on that issue. But remember that typically a “heckler’s veto”—mere disagreement by the community with a speaker’s viewpoint—is not enough. If the school district can show that community members responded to Allison’s speech in a manner that disrupted the school district, though, that might help tip the scales in favor of their decision. Maybe there was some concern by community members who lived near Allison’s home that they were being singled out or threatened by that comment about the crate being “five miles” from Allison’s home? As with all of these cases, the analysis will be very fact-specific, and we will have to wait and see how the First Amendment analysis plays out. But this case is an important reminder of how local issues can come into play when dealing with online speech by teachers. If you want to find out more, you can read a copy of the complaint and an article about the case here at Cleveland.com.
A classroom teacher comes across a promising online educational service or application that she wants to use with her students and comes to you to make sure it’s legally appropriate. The service or app would collect and use student data, maybe even share it. How do you know whether the service or app is privacy-friendly and complies with your responsibilities under federal laws like FERPA? The first key is to review the terms of service (TOS) for the service or app—and to do so before you or that teacher “clicks” to agree to using it with students.
The Department of Education recently issued requirements and best practices focused on protecting student privacy while using online educational services. The requirements and best practices document was followed by model terms of service guidance and a training video with the goal of helping school leaders tackle these very questions. The Department warned that school officials must exercise diligence when reviewing TOS agreements to avoid violating student privacy requirements.
The model TOS guidance is especially useful in that it sets forth 12 privacy-related TOS provisions to which school leaders should pay particular attention. The guidance provides examples of TOS provisions that are best practices and suggest that the provider is taking the right steps toward protecting privacy. The guidance also provides examples of TOS provisions that cannot or should not be included in TOS—in other words, examples of legal mistakes that you might see in a TOS and should avoid. Explanations follow each set of examples to help school leaders understand the privacy concerns at issue.
Examples include provisions relating to the definition of “data,” marketing and advertising, and data mining, among others. Although the Department makes clear that the best practice is always to consult legal counsel to review TOS and other materials governing a relationship between a school district and an online educational service or app provider, the guidance and other materials are essential reading for school leaders who are called upon to review TOS or other requests related to such providers.
My colleague Brian Crowley and I will be presenting with Board President Anne Miller of Community School District 300 this Saturday on this and other technology related issues at the National School Boards Association Conference in Nashville. If you are at the conference, we hope you will come and chat with us about these and other hot EdTech issues.
With Guest Blogger Kendra Yoch
The U.S. Department of Education (DOE) was busy the last quarter of 2014, issuing guidance on six issues, plus another already in 2015. The Dear Colleague Letters (DCL), Frequently Asked Questions, and Fact Sheets provide an overview of the way the DOE interprets the federal civil rights laws in the school context and the steps schools should take to ensure compliance with these laws. In case you missed one, here is a recap.
Ensuring Students Have Equal Access to Educational Resources Without Regard to Race, Color, or National Origin
On October 1, 2014, the Office for Civil Rights (OCR) issued a DCL and Fact Sheet outlining the obligations of states, districts, and schools under Title VI of the Civil Rights Act. On the 60th anniversary of Brown v. Board of Education, OCR highlights the right of all students, regardless of race, color, or national origin, to equal educational opportunities. Title VI prohibits both intentional discrimination and the implementation of policies and practices that disproportionately affect minority students. The DCL explains how OCR investigates complaints and urges districts and schools to proactively identify and address any discrepancies in resources, such as access to advanced courses, arts, extracurricular activities, strong teachers, strong administrators, technology, and comparable learning environments.
Responding to Bullying of Students with Disabilities
On October 21, 2014, OCR issued a DCL and Fact Sheet providing guidance on responding to bullying of students with disabilities. OCR notes an increase in the number of complaints it has received on this issue. The guidance explains that failure to adequately address bullying based on a student’s disability may be a violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). Additionally, bullying of a student with a disability on any basis may cause a denial of a free and appropriate public education (FAPE), which the district must also address. (more…)
As our firm reported earlier this year, the Supreme Court recently held that sectarian invocations at public meetings do not automatically violate the First Amendment of the U.S. Constitution, which separates church and state. Advocates for schools have opined about the potential impact the case, Town of Greece v. Galloway, may have in the context of school board meetings. For instance, Education Week’s summary of the case stated:
[E]ducation law experts [have] much to chew about over whether the court would treat school board meetings the same as town councils and other municipal meetings. Some federal appeals courts that have addressed meeting prayers at school board meetings have distinguished that situation … by suggesting board meetings were more like school itself, with frequent presence of schoolchildren in a coercive environment.
A recent complaint filed by the Freedom from Religion Foundation against a school district in California promises to test how the Greece holding will be applied in the school context. The complaint in Freedom from Religion Foundation v. Chino Valley Unified School District Board of Education cites to Third and Sixth Circuit appellate court cases that found constitutional violations where prayer was included in school board meetings.
Although it remains to be seen how the California court or any other court will decide the issue after Greece, the lawsuit highlights the significant risk associated with injecting religion into public board meetings, even after the recent Supreme Court ruling. This is especially true where, as in the California case, students are required to be present at school board meetings in any context. Until the issue is decided by a court in this jurisdiction, school boards should continue to consult with counsel before making religious invocations at meetings.
In a recent decision, Ollier v. Sweetwater Union High School District, the Ninth Circuit Court of Appeals upheld a trial court finding that a public school district intentionally discriminated and retaliated against female athletes on the basis of their sex, violating Title IX of the Education Amendments of 1972. The case is notable for finding that the three-part Title IX test generally applied to higher education entities also applies to high schools. The court also notably rejected the school district’s argument that there is no Title IX violation if there are more sports teams for female students at school than male students, even if there are fewer spots occupied by female students at the school.
In Ollier, the court found that female athletes at a high school were supervised by overworked coaches, provided with inferior competition and practice facilities, and received less publicity than male athletes. The court found that there were fewer athletic opportunities for female students as compared to their respective enrollments. The court rejected the school’s argument that there were more sports teams for girls than boys at the school, which was an attempt to justify the disparity between opportunity and enrollment. The court explained that the Title IX test requiring substantial proportionality between female athletic participation and enrollment generally applied to colleges and universities also applied to high schools, and that the test focuses on the number of participating athletes, not the number of available spots on girls’ teams. The court determined that because the inequalities were the result of systemic administrative failures and the failure to implement policies and procedures to cure the inequities, the school district illegally discriminated against female athletes in violation of Title IX.
The court also found that the school district retaliated against the female athletes by firing the girls’ softball coach just a few weeks after the father of two of the athletes complained about the perceived inequalities in the programs. The coach had been warned that he could be fired at any time for any reason, which he understood to be a threat that he would be fired if the female athletes continued to complain. The court explained that coaches are often the best advocates for female athletes and that employment decisions affecting them can negatively impact the athletes.
With Guest Bloggers Brian Crowley and Jamel Greer*
This past July, the U.S. Department of Education released the Transparency Best Practices for Schools and Districts, a new set of guidelines created to improve relations between school districts and parents surrounding school districts’ collection, maintenance, and distribution of student data. The new guidelines seek to keep parents more informed and if properly implemented, such guidelines are intended to create a uniform standard to which school districts may be held accountable.
The new guidelines arose out of the Privacy Technical Assistance Center (PTAC), a subdivision of the U.S. Department of Education, which serves as a hub for resources related to data privacy and security practices related to education. School districts throughout the United States regularly collect and store data on their students including test scores, discipline records, special education needs, etc. In addition, many school districts distribute this information to third parties such as educational agencies in order to target and improve student academic achievement. This interest at time runs contrary to the interests of parents who are increasingly concerned with the risks associated with such information being collected and shared with third parties. The guidelines established by PTAC strive to strike a balance between the two so that parents will now know what information is being collected, why it is being collected, how it will be used, and what other parties may have access to this information.
The recommendations put forth by PTAC are broken up by the following topics:
- what to communicate with parents;
- how to communicate about data practices and;
- how to respond to inquiries.
Within each topic, school districts are advised on the best practices in communicating with parents that go above and beyond the legal obligations to which they must adhere. For instance, under the topic of what to communicate with parents, school districts are advised to publish a list of data that they regularly collect, as well as to provide the purpose behind why the information is collected and with whom it will be shared. As digital technology continues to advance exponentially, school districts can look to proactive measures such as these guidelines in order to avoid potential legal pitfalls associated with the collection and distribution of student data.
*Jamel Greer is a first year Franczek Radelet associate and his Illinois bar admission is currently pending.
With Guest Bloggers Laura Knittle and Julie Heuberger Yura
According to the U.S. Departments of Justice and Education, U.S. school districts are discouraging student enrollment based on their parents’ illegal immigrant status. The Departments issued guidance, a frequently asked questions document, and a fact sheet with advice on how school districts can provide all students with equal educational opportunities, regardless of their immigration or citizenship status.
The guidance focuses on information school districts require parents and guardians to provide to establish residency and a student’s age. Most school leaders know that they cannot ask directly about a student or parent’s immigration status during the residency process. But the Departments warned that even less direct requests for information might impermissibly discourage enrollment by non-citizen parents.
The following is a summary of the key advice in the guidance:
- A district may require proof of residency, such as copies of phone and water bills and lease agreements, and may restrict attendance to district residents, but it is never relevant to inquire into a students’ immigration status to establish residency. A district should review the list of documents it requires to establish residency to ensure no required documents unlawfully bar or discourage non-citizens from enrolling in or attending school. For instance, the Departments warned against requiring a parent to provide a state-issued driver’s license or identification card to establish residency.
- With respect to establishing age, a school district may not bar a student from enrolling because he or she lacks a U.S. birth certificate; schools must also accept other documentation such as family bibles, medical records, and previous school records. Indeed, the guidance materials suggest that schools should take proactive steps to reassure parents that they can provide other documentation, such as a foreign birth certificate, without fear that it would lead to questions about the family’s immigration status. For example, the Departments suggest that schools should publicize that it will only use a foreign birth certificate, baptismal record, or alternative document to establish the age of the child and not for any other purpose. Notably, the guidance does not address whether the Illinois requirement that schools must ask for a copy of a student’s birth certificate at the time of enrollment and report the lack of a birth certification to law enforcement runs afoul of federal law.
- Schools may comply with their federal and state obligations to report data such as race and ethnicity of student population, but may not use information collected about students to discriminate against them or deny enrollment because a student’s parents refuse to provide the required data. The guidance suggests, but does not require, that schools should wait until after a student is enrolled to ask for additional documentation not necessary for the enrollment process, such as demographic information required by state or federal law, in order to “create a more welcoming and inclusive atmosphere for all prospective students.”
- A school district may not deny enrollment based on a lack of a social security number, and if it requests a social security number it must notify parents that the disclosure of the number is voluntary and refusal will not bar a child’s enrollment, provide a statutory basis for making the request, and explain what it will do with the number if provided. The Departments reminded schools that any policy related to collecting and reviewing social security numbers must be uniformly applied to all students and not applied in a selective manner to specific groups of students.
Based on this guidance, school leaders should review existing enrollment policies to determine whether any have the unintended consequence of discouraging enrollment of immigrant students to public schools.
Last year, I blogged about the impact of a higher education Supreme Court diversity case, Fisher v. University of Texas on K-12 schools. As discussed in that blog, although the decision was a higher education decision, it raised important takeaways for primary and secondary schools wishing to use race as a factor in admission or assignment decisions. As also reported in that blog, the Court remanded the decision to the lower appellate court, the Fifth Circuit Court of Appeals, to decide whether the University could establish that its consideration of race in the case was narrowly tailored. Specifically, the Supreme Court directed the University to show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The Court also directed the Fifth Circuit to apply “exacting scrutiny” to the decision and not to defer too heavily to the University about the necessity of relying on race.
As Jennifer Smith from our firm reported late last week in an FR Alert, the Fifth Circuit recently ruled on the remanded case, and found that the University properly used race as a factor in a “holistic review” in the admissions process. As Jennifer explained:
The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”
The case does not constitute a major change in the law in this area, and the takeaways from our previous blog remain relevant for K-12 school leaders. Specifically, race can still be used as a factor in admissions or assignment decisions, although only where great pains are taken to establish the necessity of such use. Legal counsel for the student in the case have vowed to appeal, though, and it is uncertain if the Supreme Court would agree with the Fifth Circuit if it took the case on for review. As always, school leaders should consult with legal counsel and take care when using race in any admissions or assignment decisions in light of the flurry of legal activity in this area in the courts.