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:
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:
In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.
The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.
That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.
The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.
As The New York Times recently reported, a Colorado school district is facing a civil rights complaint after refusing to allow a six-year-old transgender student to use the girls’ bathroom in a local elementary school. The case highlights the challenges that school administrators face when addressing requests by transgender students to use single-sex facilities in school.
On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.
The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.
Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.
A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.
A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?
There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.
In a Dear Colleague letter issued last week to chief state school officers, the U.S. Department of Education called for immediate action to reduce gender-based violence in schools. The letter is short and sets forth only a few general suggestions for steps that schools can take to respond to gender-based violence. But the letter must be read against the backdrop of two previous Dear Colleague letters issued by the Department on bullying, harassment and sexual violence. Against the backdrop of those letters, the most recent Dear Colleague Letter is yet another reminder of the high standards to which the Department and its Office for Civil Rights (OCR) holds schools with respect to sexual harassment and violence.
By way of background, the letter reportedly was released during a White House event on teen dating violence prevention, which was part of National Teen Dating Violence Awareness and Prevention Month and the Obama Administration’s efforts to raise awareness of gender-based violence. A press release issued by the Department suggests that the purpose of the letter was to make clear that although strategies to improve school climate and reduce bullying are critical, they may not be adequate to address the harms of gender-based violence.
As schools increase the use of technology to communicate with and about students, questions arise about the intersection between the data created and student records laws, such as the Federal Educational Rights and Privacy Act (FERPA). States also have similar laws that may provide greater protections than their federal counterpart. Are emails, texts, Tweets, and other digital communications between teachers, administrators, parents, and students “educational records” under FERPA and related state laws?
Let’s address the following questions: (1) Why does it matter? (2) Are digital communications student records? and (3) How do I respond to a broad student records request for digital communications? (more…)