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.
The Supreme Court decided this week not to hear a recent case from the Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana, and Wisconsin) regarding public school graduation ceremonies in churches. As Franczek Radelet reported when the decision was handed down in 2012, the Seventh Circuit held that a Wisconsin school district violated the First Amendment’s Establishment Clause by holding a graduation ceremony in a church with pervasively religious symbols. The Seventh Circuit found that such action could lead to the perception that the school endorsed the Christian religion. As we explained, the court stated:
Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” The majority reasoned that a reasonable observer could “conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith – despite the presence of children, the importance of the graduation ceremony, and, most importantly, the existence of other suitable graduation sites – if the District approved of the Church’s message.”
After last week’s decision allowing prayer before town meetings (which we covered in an FR Alert), one might have expected the Supreme Court to take up (and even reverse) the Seventh Circuit’s decision. But the Court declined to even hear the appeal.
In a relatively uncommon step, Justice Scalia, joined by Justice Thomas, dissented from the Court’s denial of review in the case. Scalia compared the complaints of non-Christian parents about holding graduation ceremonies in churches to his own dislike for the public playing of “rock music and Stravinsky,” and expressed his belief that based on prior Supreme Court precedent, such an aversion “cannot be imposed by law because of the First Amendment.” In other words, according to Scalia and Thomas the Establishment Clause of the First Amendment does not even apply to, let alone prohibit, holding graduation ceremonies in churches. Scalia argued that because the Seventh Circuit’s decision was en banc (before all the judges of the Seventh Circuit), prompted three powerful dissents, conflicted with decisions that have long allowed graduation ceremonies to take place in churches, and conflicted with decisions upholding other public uses of religious spaces, Supreme Court review should have been granted.
The Supreme Court’s decision not to hear the case means the Seventh Circuit’s decision remains good law, and binding law for school districts in its jurisdiction. Notably, the decision does not hold that a graduation ceremony may never be held in a church or other religious building. Rather, the decision cautions against such proceedings being held in a location with the “sheer religiosity” of the church in question in the case. As our previous summary explained:
[T]he church . . . had a 15-20 foot tall cross at the front of the sanctuary, as well as Bibles and hymnals in the pews and religious literature in the lobby, including signs and pamphlets targeted at children. Some years, church members staffed the information booths and/or distributed religious literature.”
The reality of the decision, however, is that it is legally risky to hold a graduation ceremony in any church, and so caution is warranted by schools considering doing so. At the very least, review of the question by legal counsel is imperative.
By Guest Blogger Amy Kosanovich Dickerson
School leaders across the country are buzzing about a California Superior Court’s recent tentative ruling that the state’s teacher tenure, dismissal, and layoff laws violate the equal protection clause of the California Constitution. As can be seen in the analyses in the Chicago Tribune, Politico and Education Week, education and news groups are also speculating about the ruling’s significance for California and other states throughout the country. Below is a brief summary of the decision and its potential implications for states across the country, including Illinois.
The Court’s Decision
In Vergara v. State of California, nine California public school students, supported by the group Students Matter, claimed that the state’s teacher tenure, dismissal and layoff statutes result in “grossly ineffective teachers” obtaining and retaining permanent employment, and that these teachers are disproportionately employed in schools serving predominantly low-income and minority students, in violation of the equal protection clause of the California Constitution. The court agreed with the students, finding that the statutes violate students’ fundamental rights to equal education “by adversely affecting the quality of education they are afforded by the state.” The court’s opinion references a significant amount of testimony presented at trial on these adverse effects, including testimony that 1-3% of teachers in California, or 2,750-8,250 teachers, are “grossly ineffective.”
In finding the state’s teacher tenure law unconstitutional, the court took particular issue with the fact that a California public school teacher may attain tenure in only two years, and that the tenure decision effectively must be made in the middle of the teacher’s second year under the law’s notice provision. The court found this short timeframe unfairly disadvantages both teachers and students, noting that two of the state’s own experts agreed that a three-to-five year probationary period would be a more beneficial time frame to make tenure decisions for both students and teachers.
The court also found that the state’s current teacher dismissal procedure is so complex, time consuming, and expensive that it effectively prohibits an effective, efficient, and fair dismissal of a grossly ineffective teacher. The court cited evidence that the dismissal process for a teacher in California can take anywhere from two to ten years and cost $50,000 to $450,000, and that as a result, dismissals are “extremely rare” because administrators believe it to be “impossible” to dismiss a teacher under the current system. The court also relied on testimony that the Los Angeles Unified School District alone had 350 grossly ineffective teachers it wished to dismiss at the time of trial for whom the dismissal process had not yet been initiated.
Finally, the court ruled that the state’s teacher layoff procedures are unconstitutional due to layoff decisions being based solely on a teacher’s seniority without any consideration of a teacher’s classroom performance or evaluation ratings. While the court’s ruling calls for the challenged statutes to be enjoined from being enforced, the court stayed such injunctions until any appeals of the ruling are completed.
Insights for School Leaders, in California and Beyond
Throughout its opinion, the Court distinguished California’s current tenure and layoff laws from those in other states, suggesting that other states’ laws would not present the same problems found by the court. For example, the court cited evidence that California is one of only five states with a probationary period before a teacher is awarded tenure of two years or less. Thirty-two states have a three-year teacher probationary period, and nine states have a four-or five year period. Similarly, California is among only ten states that consider seniority as the sole factor or a required factor when deciding teacher layoffs. While twenty states provide that seniority may be considered among other factors, eighteen states and Washington, D.C. leave the layoff criteria to school district discretion, and two states provide that seniority cannot be considered.
Thus, it is possible that student groups in states with laws similar to California might succeed on similar challenges based on the reasoning of this case. In states with laws that differ considerably from California’s, however, it is less likely that the court’s reasoning would support a challenge to the current law. For example, the recent amendments to Illinois’ teacher tenure, dismissal and layoff laws by Senate Bill 7 and the Performance Evaluation Reform Act (PERA) created numerous distinctions between Illinois’ and California’s laws. Namely, Illinois has a 4-year probationary period for teachers before they can be awarded tenure, and by September 1, 2016, teacher performance will be a factor in all tenure decisions for those teachers first employed by that date. Illinois also requires a teacher’s performance to be considered in a school district’s layoff decisions and has undergone changes to its teacher dismissal process that were intended to make the process more efficient.
In any event, there is no doubt that education leaders from across the country will be paying close attention to the outcome of any appeals filed in this case. And while the legal implications of the case may still be uncertain, this decision sends a powerful message about a growing trend of viewing policy on teacher employment decisions from the perspective of their impact on students.
As a frequent advisor to school districts on freedom of information requests, the question I face most often is how a public body can protect a sensitive document from release. Rarely am I asked what might happen if a public body decides to release a record that could have been protected under a freedom of information law. A recent decision from the Iowa Supreme Court is a reminder of the importance of focusing on that question when choosing to release records that might be subject to an exemption under a records request law.
In Sebring v. Des Moines Independent Community School District, a former Des Moines school district superintendent, Nancy Sebring, sued the school district and a number of its officials, including the former school board president and school attorney for invasion of privacy. The school district and its officials had released certain sexually explicit emails Sebring sent or received on the school district’s email servers in response to a request for records under the Iowa Open Records Law. The request, from the Des Moines Register, had sought emails relating to Sebring’s impending departure from the school district to serve as superintendent in Omaha, Nebraska. The sexually explicit emails were not related to Sebring’s departure for Omaha, but incidentally included the term “Omaha” and so were uncovered in a broad search by the school district’s information technology department. Despite the fact that the emails were not responsive to the request, the school district released them to the newspaper, anyway.
In April, an Iowa trial court ruled that Sebring had sufficiently alleged claims against the school district to move forward with her case. The court noted that when the school district uncovered the emails, officials recognized that the emails could be evidence of misuse of technology by Sebring, and so could have led to discipline for Sebring. In Iowa, documents related to disciplinary matters are exempt from disclosure under the public records law. Accordingly, the court held, the school district should not have produced the records.
The school district appealed the decision to the Iowa appellate court, and the case made its way up to the Iowa Supreme Court. Earlier this month, the Supreme Court reportedly decided that it would not hear the school district’s appeal. The trial court’s decision thus stands, and Sebring’s case can proceed to trial.
Insights for School Leaders
Our focus in public records cases usually is on finding an exemption that applies to the (often, sensitive) records that a public body does not want to release. But the Sebring case refocuses our attention on the potential fallout if a public body chooses to release a record that could be protected by an exemption. There are a couple of exemptions that are similar to the one addressed in Sebring in Illinois, for instance. Under our Freedom of Information Act (FOIA), not only are certain disciplinary records exempt from release through a cross-reference to the Personnel Records Review Act, but there is also a general catch all exemption for records the release of which would be an unwarranted invasion of personal privacy. Records that are not related to one’s public business may fall under that latter exemption. Notably, the decision whether or not to release exempt records typically is a choice for public bodies. Under the Iowa and Illinois public records laws, for instance, a public body may rely on an exemption to withhold a record, but it is not required to do so. The Sebring case is an important reminder that there can be legal risks in how public bodies exercise that choice, and specifically where a public body chooses to release a document that might be subject to an exemption. That release may not violate the public records law, but it might provide fodder for a lawsuit by the subject of the records released.