Short Series Podcast: Transgender K-12, Case Law Related to Bathroom Policies

Episode 2:  Overview of Case Law Related to Bathroom Policies

Erin and Giselle take a steadfast review of four interesting cases charting the initial path for school bathroom policies under Title IX and equal protection as they impact transgender students in K-12 schools. The discussion emphasizes how the courts have strived to keep everyone on course as the winds of change continue to blow among different administrations.

You can also listen here or wherever you get your podcasts. Look for new episodes on the first and third Thursdays of the month.


Department of Education Investigates Removal of Library Books in Schools

Department of Education Investigates Removal of Library Books in Schools

During the 2021-2022 school year, the Office for Civil Rights (OCR) opened an investigation into Forsyth County Schools following a complaint that the district discriminated against students on the basis of sex, race, color, and national origin.

Forsyth County Schools had received a complaint from a parent group over books the group believed contained sexually explicit material. Soon after, the school began receiving complaints from other parents regarding books that discussed LGBTQ+ issues. Parents suggested the district shelve those books separately, placing tags to identify them, or create a system for parents to prohibit their students from checking out specific books, specifically those that focus on LGBTQ+ issues. The District Media Committee rejected both suggestions, stating that implementing those restrictions may increase isolation and bullying, and could result in students avoiding the library altogether. Furthermore, the district believed that implementing a system where students were prohibited from checking out certain books would force the media specialists to become “gatekeepers” of the books.

While the committee rejected the suggestions regarding books with LGBTQ+ content, the Superintendent did authorize staff to review and pull books that included explicit sexual content. Ultimately, the staff permanently removed eight books, temporarily removed two books, and restricted four books to high school libraries. Despite the permanent removal of eight books, many parents continued to call for the removal of even more, some of which focused on gender identity or sexual orientation.

At a board meeting following the removal, multiple students pointed out that the district was banning books largely written by women of color, or those that focused on LGBTQ+ issues. For example, one of the banned books “All Boys Aren’t Blue” by George M. Johnson focuses on Johnson’s childhood and adolescence as a gay Black man. The students argued that banning books, specifically books that are written by or have characters who are members of a minority community, was reflective of the District’s lack of commitment to diversity and highlighting minority voices. The students further told the Board that removal of books such as “All Boys Aren’t Blue” or “Juliet Takes a Breath,” which focuses on a Puerto Rican American who comes out to her family, ostracizes students who are part of marginalized communities that felt represented and understood by those books, making the school environment harsher for those students.

Following the February board meeting, the district formed a summer review committee where 34 readers would review the books up for permanent removal. The committee was required to look at the book’s content and manner of presentation, whether the book was age appropriate, sophistication level, whether it met the students’ instructional, social, emotional, and personal needs, whether it exhibited a high degree of potential user appeal and interest, and whether it provided a global perspective and promoted diversity by including materials about and by authors or illustrators of all cultures. Ultimately, the committee decided to return seven of the eight books to the shelves. Since the reinstatement of seven of the books, there have been no more formal complaints filed regarding book removal.

In a letter addressed to the Superintendent following the investigation, OCR stated that the district’s removal of titles with Black and LGBTQ+ characters may have created a “hostile environment” for students, potentially violating their civil rights. Specifically, OCR’s concern stemmed from the fact that the district received notice that the screening process created a hostile environment for students, but the District’s “responsive steps related to the book screening process were not designed to, and were insufficient to, ameliorate any resultant racially and sexually hostile environment.” While OCR acknowledged that the District strives to provide resources for all students within the community, it noted that the board meetings “conveyed the impression that books were being screened to exclude diverse authors and characters, including people who are LGBTQI+ and authors who are not white.” OCR also noted that district witnesses reported that despite students verbalizing their fears, the district did not take steps to address the impact of the book removals with students. Thus, OCR concluded that the District’s lack of response could have created a hostile environment that the district failed to ameliorate.

The District ultimately signed a Resolution Agreement intended to resolve the issues identified by OCR. The resolution agreement requires the district to administer a school climate survey to address prevalence of harassment and the student’s perception of harassment. Additionally, the district must post a statement that provides students with information including why certain books were removed, an acknowledgement that the environment surrounding book removal may impact students, and instructions on how to file a complaint about discrimination.

The District’s willingness to agree to the Resolution Agreement was applauded by the Assistant Secretary for Civil Rights who thanked the district for assessing and responding to the needs of students who felt as if they were subjected to a hostile environment, and for agreeing to “take appropriate action regarding acts of harassment that create a hostile environment based on sex, race, color or national origin.”

What does this mean for your district?

Requests for and debates over book bans have resurfaced in recent years. OCR made it clear in this decision that the impact of district actions is just as important as the intent behind them, so while Forsyth County may have had good intentions, it was the impact of the acts that created the potentially hostile environment. Districts should consider in advance of the potential impact that could occur when creating book committees and policies regarding removal of books.

















































































































































































































































































































































































































































































Education Department Issues Guidance on Religious Expression in Schools

Education Department Issues Guidance on Religious Expression in Schools

On May 15, 2023, the United States Department of Education issued a “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools” document. Coaches are referenced several times throughout the guidance, and it is likely that the guidance was issued in response to the decision of the Supreme Court of the United States in Kennedy v. Bremerton School District, which centered around a football coach engaging in private prayer at the end of each football game on the field.

The guidance opens with the reminder that when teachers, coaches, and other public school officials speak in their official capacities, they may not engage in prayer or promote religious views. However, the guidance notes that not everything a public school teacher, coach, or other official says in the workplace constitutes governmental speech. The guidance specifically states that where teachers, coaches, or other employees engage in personal speech, a school district may not prohibit them from doing so because the expression is religious in nature or because other observers, including students, might misperceive that the school is endorsing the expression. Absent some evidence that the teacher, coach, or other school official is pressuring or encouraging students to engage in religious expression, a school district has limited authority to regulate such speech.

The guidance goes on to address such topics as prayer groups, religious expression during instructional time, moments of silence, student assemblies, teaching about religion, religious expression in school assignments or homework, excusal for religious activities, and baccalaureate ceremonies. A copy of the guidance can be found here.

What this means for schools:
School districts may (and must, to avoid violating the Establishment Clause) restrict religious expression that suggests endorsement of religion or where the expression by staff is intended to compel or encourage student participation. However, staff remain free to engage in private religious expression such as private prayer, even when visible to others and even when it occurs at district sponsored activities. Of course, the devil is in the details, as they say. Confer with counsel as needed to interpret employee actions in light of the new guidance.
















































































































































































































































































































































































































































































Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

Special Education Update: Latest Budget Bill Draft Includes Troubling Special Education Provisions

On June 8, 2023, the Senate Finance Committee released its draft of the HB 33, the state biennium budget bill. The draft contained some unfortunate proposals that will impact special education if passed in the final version of the bill, which is expected by the end of June. This article is current as of June 15, but the budget is moving quickly to its conclusion as the final conference committee completes its work and sends the bill to the Governor. Stay tuned for additional updates and possible changes.

Scholarship Changes
In addition once again expanding the EdChoice program by more than $373 million over two years, the Senate Finance Committee’s proposed bill also expands the Autism Scholarship Program (ASP) to any child who has been “identified” with autism by the child’s resident school district, or who receives services through an Individualized Education Plan (“IEP”) that are related to autism. Perhaps most concerning, the proposed bill would require school districts to develop “education plans” for a child who is eligible for a scholarship based on a diagnosis of autism, but who does not have an IEP. As districts are well aware, many students have received a medical diagnosis of autism at some point in their childhood yet are determined not eligible for an IEP or even a Section 504 plan because they do not demonstrate a need for special education and related services or any type of accommodations and modifications. This proposal requires development of an “education plan” regardless of need. Further, it provides students with access to the ASP even though they have not demonstrated eligibility for special education.

Both the House and current Senate budget proposals include an increase to the Jon Peterson Scholarship as well. The current version of the bill includes the following:
• Increases the base amount from $6,414 to $7,190
• Increases the Category 1 amount from $1,562 to $1,751
• Increases the Category 2 amount from $3,963 to $4,442
• Increases the Category 3 amount from $9,522 to $10,673
• Increases the Category 4 amount from $12,707 to $14,243
• Increases the Category 5 amount from $17,209 to $19,290
• Increases the Category 6 amount from $25,370 to $28,438
• Increases the maximum scholarship award (capped amount) from $27,000 to $30,000

Special Education Transportation
One of the most unfortunate provisions of the Senate’s version is a requirement that school districts provide transportation as a related service to students with disabilities who live within the district but attend a nonpublic school if the school district is provided with supporting documentation in the student’s IEP, individual service plan, or academic support plan. This change may further exacerbate transportation challenges for districts already struggling to provide transportation to their enrolled students. The current version does expand a district’s ability to use vans to transport students in certain circumstances, which is helpful (if it remains in the bill; reports suggest that it may be removed).

The governor’s version of the bill contains language that would extend the formula for determining special education transportation payments into FY 2024 and FY 2025 and increases the minimum state share percentage for traditional school district payments from 33.33% to 37.5% in FY 2024, and to 41.67% in FY 2025. The bill would extend these increases to educational service centers as well. However, the Senate Finance Committee made changes to the traditional district foundation aid formula which ultimately decreases the percentage share earmarked for special education transportation by $3 million in FY 2024 and $2 million in FY 2025. Likewise, the governor proposed an increase for funding preschool special education which was offset in part by the Senate Committee’s proposed change to the foundation aid formula.

Seizure Action Plans
The House introduced language in HB 33 that would require school districts to develop seizure action plans for each student with an active seizure disorder diagnosis. The Senate Committee maintained this language in its version. The proposed law also contains a training requirement: every two years, districts would need to ensure that at least one other employee besides the school nurse is trained to implement a seizure action plan. The proposal includes language that expressly extends qualified immunity to employees who carry out the plans in good faith. If this law passes, there are possible child find implications. Seizure disorders are considered disabilities, and students may be eligible for Section 504 plans or IEPs. It is recommended that districts keep special education teams in the loop when plans are developed so that districts may consider whether to offer evaluations that fulfill child find obligations.

Auxiliary Services Funds
The governor’s budget authorizes a newly chartered nonpublic school, within ten days of receiving its charter, to elect to receive auxiliary services funds directly. The Senate Finance Committee also inserted language into the bill that prohibits a district from denying a nonpublic school’s request for personnel to provide auxiliary services who are properly licensed.

Additional changes are expected in future iterations of the budget bill before a final version is passed. In the meantime, school districts should reach out to area legislators and share any concerns they have about the proposed language. Pam Leist and Hollie Reedy will review the final budget bill in detail at the Administrator’s Academy on July 13, 2023. Click here to register for the webinar.