As reported by the Washington Post, President Obama is expected to sign a bill into law encouraging states to require schools to take greater efforts to protect students with food allergies. The bipartisan bill was proposed by Illinois Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) following the deaths of two girls in Illinois and Virginia from severe food allergies.
The bill comes at a time of heightened focus by the media and the government on the issue of childhood allergies. A recent New York Times Sunday Reviewarticle, for instance, delved into the connection between food allergies and the decline of agrarian culture. And the Centers for Disease Control and Prevention recently issued voluntary guidelines for schools regarding managing food allergies in educational programs (more information from the CDC can be found here).
The bill also is in addition to numerous State law requirements for schools regarding allergies. In 2011, for instance, Illinois school districts were first required to implement a food allergy management policy under Illinois law. As one source reports, the Illinois law “allows schools to maintain a supply of epinephrine on site and for school nurses to administer epinephrine to any student suffering from a severe allergic reaction.” The guidelines required under the Illinois law must comport with Illinois State Board of Education and Illinois Department of Public Health guidelines on food allergies that were published in 2010. In all, twenty-seven states reportedly have laws allowing schools to administer epinephrine to students without a prescription.
The bill would expand on state law by offering a financial incentive to states that require schools to do all of the following:
- Allow a wider array of trained school personnel to administer epinephrine to students reasonably believed to be having an anaphylactic reaction;
- Maintain a supply of epinephrine in a secure location that is easily accessible to trained personnel of the school for the purpose of administration to any student of the school reasonably believed to be having an anaphylactic reaction; and
- Have in place a plan for having on the premises of the school during all operating hours one or more individuals who are trained personnel to administer epinephrine.
Notably, although many students with severe food allergies bring their own epinephrine injectors to school, the bill reportedly nonetheless would help numerous children who do not know they have life threatening allergies. Approximately a quarter of recent administrations of epinephrine in the school setting involved students who were not previously aware of their allergies and so would not have had a personal supply of epinephrine.
If the bill is signed into law, additional state action will be required for the mandates of the bill to reach school districts. Even if a state implements the mandates of the bill, moreover, other issues relating to food allergies in schools – such as specifics of education and training, implementation of individualized health care and food allergy action plans, procedures for responding to life-threatening reactions to food, and protocols to avoid exposure to food allergens – are not covered by the bill and so will remain subject to state law or, where there is none, school district discretion.
In an earlier blog post, we addressed whether an Ohio school district violated the First Amendment by hanging a portrait of Jesus in a middle school. The portrait allegedly was a gift to the school board by a Christian student club and had been hanging in the school district’s schools since the 1940s. In February, the school board voted to allow the picture to remain despite a lawsuit filed by the ACLU and the Wisconsin-based Freedom from Religion Foundation (FFRF). The school board said that the portrait is not owned by the school but rather belongs to a Christian student club, and that removing it might violate the First Amendment rights of the students in the club.
The parties reportedly reached a tentative agreement months ago when, in April, the school board took the picture down. The legal fight was rekindled, however, when the ACLU and FFRF learned that the school district continued to keep the portrait in its high school building in an area visible to those entering an art-storage area, and displayed the picture on a school lawn during a prayer meeting. After a flurry of more legal filings, the school district decided to settle, agreeing to remove the picture from its school buildings, to pay each of the anonymous students who brought the complaint $3,000, and to pay the ACLU and FFRF $80,000.
As we pointed out in our earlier blog post, there are a number of key takeaways that school leaders can glean from this case.
Courts are generally skeptical of religious displays, including religious works of art, that appear to be school-sponsored speech unless there is a clear secular purpose behind the display. A secular purpose might include a display including art work from a number of religions or examples of historical figures. A court also may be concerned if only one religion, such as Christianity, is represented. When the religious speech purportedly is that of a student or students, the issue becomes more difficult. Whether it is a posting by a student group, a student submission to a class or contest that includes religious content, student speech with religious undertones at a talent show or a graduation or other assembly, or the reading of prayers by students at a football game, there are a myriad of legal rules and challenges of which school leaders should be aware. The Ohio settlement makes clear that balancing these rules and challenges can be difficult, and sometimes costly.
Illinois recently joined twenty other states and the District of Columbia in legalizing medical marijuana. Four other states are considering passing similar legislation in the near future. How do primary and secondary schools adapt when the state allows employees and students to legally possess and use marijuana for medical purposes? The following are a few issues that K-12 schools may face.
Drug Possession and Use
What if an employee or student shows up at school, on a school bus, or at a school-related event with marijuana? Or uses marijuana at those places? When caught, the individual presents a doctor’s prescription for the drug. Is the prescription a get-out-of-jail-free card for school discipline?
The Ninth Circuit Court of Appeals joined a growing number of federal courts of appeals that have addressed when public schools can discipline students for off-campus, online misconduct. The case involved multiple threats by a Nevada high school student, made on his own computer on his own time, that he would commit a school shooting. The court held that the school’s discipline of the student did not violate his constitutional rights, but took care to make clear that its holding was limited to threats of serious school violence. The court saved for another day the more difficult issue of when other types of non-threatening off-campus, online misconduct – such as harassment or bullying of staff or other students – can be the subject of school discipline.
In Wynar v. Douglas County School District, a student of Douglas High School in Minden, Nevada sent a number of troubling instant messages through MySpace to classmates from his home computer. In the messages, he bragged about having a stockpile of weapons, threatened to shoot and “take out” particular students on the anniversary of the Columbine school shooting, and boasted that his victims would outnumber those in the Virginia Tech shooting – the deadliest school shooting to date. After some of the student’s friends reported the messages to school authorities, school officials interviewed the student, who admitted that he wrote the messages but claimed they were a joke. The school district expelled the student for 90 days for violating a policy against threatening other students. The student sued, arguing that his off-campus speech was protected by the First Amendment of the U.S. Constitution. (more…)
This month, two courts issued dramatically different opinions about whether school districts can prohibit breast cancer awareness bracelets reading “I ♥ boobies” without running afoul of students’ First Amendment free speech rights. In both cases, the school districts argued that they could prohibit the speech in the school context based on the 1986 Supreme Court case Bethel School District v. Fraser. In Fraser, the Court upheld the suspension of a high school student for making a speech full of sexual innuendos during a school assembly. The Fraser Court held that the discipline did not violate the student’s First Amendment rights, and that opinion has been interpreted to authorize school discipline of lewd, vulgar, obscene, indecent, or patently offensive speech in the school environment. (more…)
As reported by Franczek Radelet attorney Scott Warner and FR LEADS Fellow Kent Sparks (a law student at the Michigan State University College of Law) in a recent FR Alert, the U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague Letter last week for secondary schools about how Title IX relates to pregnant and parenting students. OCR reminded schools that Title IX protects pregnant and parenting students from sex discrimination. In an accompanying pamphlet, OCR outlined the various requirements that public schools must respect with respect to pregnant and parenting students. For more information on the DCL, you can access the FR Alert here.
The big news this week in education is the U.S. Supreme Court’s 7-1 decision in Fisher v. University of Texas. In Fisher, the Court held that the lower court should not have taken at face value the University’s claim that it needed to use race in admissions decisions. The Court remanded the decision to the lower court to decide whether the University can establish that its consideration of race is narrowly tailored. Specifically, the University must show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The decision was a higher education decision, but there are important takeaways for primary and secondary schools, as well.
The U. S. Supreme Court has declared unconstitutional a portion of the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union between one man and one woman. The Court’s 5-4 vote in U.S. v. Windsor will reach well beyond the case of Edith Windsor, a New York widow, who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009. The Windsor decision means that same-sex couples who are legally married now must be treated the same under federal law as married opposite-sex couples. What does that mean for school districts? My colleagues, Jeff Nowak and Veronica Silva, provide their take on this decision’s impact on employers, including public schools, in a recent FR Alert.
Mlive.com and the NSBA Legal Clips recently reported that a Michigan School entered into an agreement with the Department of Education Office for Civil Rights (“OCR”) to resolve allegations that the district failed to properly address claims of sexual assault by one student on two other students. The case provides an important reminder of the stringent standards to which OCR holds school districts when investigating claims of sexual harassment and violence against students.
In 2010, two female students in the Grand Rapids school district reported being sexually assaulted by a prominent male athlete. One of the students and her parents later reported on fifteen occasions that the student was repeatedly harassed in retaliation after the assault. The student reported being shoved in the hallways, bullied online, and taunted at school sporting events. The student eventually dropped out of extracurricular activities and later out of school.
OCR found that the District did not adequately investigate or respond to the complaints of assault and retaliation. The following are key takeaways that can be gleaned from OCR’s decision:
Discriminatory discipline has been a hot topic this year in public schools, and the focus on this topic makes it one that school leaders should not ignore.
A Spotlight on Discriminatory Discipline
In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.
In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.
In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.
Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.
Tips and Tricks
Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.
Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above: