by Erin Wessendorf-Wortman | May 23, 2017 | General, Student Education and Discipline
In a unanimous opinion, the Ohio Supreme Court has held that a school’s search of an unattended bag, and the two subsequent searches that initiated from the initial search, were constitutional. The court held that the searches served a compelling governmental interest in protecting the safety of the students. Two lower courts had ruled that the subsequent searches were unconstitutional and thus suppressed the evidence found in those searches – including ammunition and a gun.
Whetstone High School student James Polk left a book bag on his school bus. The bus driver found the book bag and gave it to the safety and security resource coordinator, Robert Lindsey, who checks the buses to ensure that no students are remaining on board. Lindsey was not a police officer. Based on the high school’s practice of searching unattended book bags to identify the owner and to ensure the contents are not dangerous, Lindsey opened the bag and saw some papers and notebooks, along with Polk’s name written on one of the papers (search 1). He had heard that Polk was possibly in a gang, so he took the bag immediately to the principal’s office, where together they conducted a complete search of the book bag (search 2).
In conducting search 2, the principal and Lindsey found bullets in the book bag and then contacted a police officer. When the police officer arrived, they found Polk and searched him and the book bag he was carrying (search 3). They found a handgun in the book bag during search 3.
On trial for conveyance or possession of a deadly weapon or dangerous ordnance in a school-safety zone, Polk asked the court to suppress the evidence – both the bullets and the handgun – arguing that the searches were unconstitutional under the Fourth Amendment, which protects from unreasonable searches and seizures. Both the trial court and the court of appeals granted his motion to suppress the evidence, holding that search 1 – Lindsey’s initial opening of the bag enough to see Polk’s name on a document – was the only legitimate search. The other two searches, the courts held, were unconstitutional.
In general, under the Fourth Amendment, a police officer must have probable cause and a search warrant to conduct a search. However, courts have held that school searches may be conducted under a lesser standard of reasonable suspicion: justified at inception and reasonable in scope. In this case, the Ohio Supreme Court was tasked with determining whether the search protocol used was reasonable through balancing the government’s interest in safety and security against the student’s privacy interests.
The court centered on the constitutionality of search 2: whether it was permissible for the principal and Lindsey to conduct a full search of the student’s bag, when search 1 provided them with the identity of the owner of the unattended book bag.
In its finding, the court determined that it was appropriate for Whetstone High School to conduct complete searches of unattended book bags to ensure that they do not contain dangerous contents. Anything less than a complete search would not be enough to ensure safety and security for students. Key to this determination was that Whetstone High School required searches of unattended book bags to not only identify the owners but also to verify that the contents of the book bag are not dangerous. This was their protocol, albeit unwritten. Further, the search protocol was appropriate, reasonable, and reflective of the school’s obligation to keep students safe in a time when schools face a myriad of security concerns (e.g., school shootings, bomb threats, terrorist attacks). As a result, search 1 was inadequate in the court’s mind as it did not advance the school’s interest in ensuring safety and security of its students. Search 2 was required to fulfill this interest.
Additionally, the court found that the student’s expectation of privacy in his unattended book bag was “greatly diminished.” A person’s reasonable expectation of privacy diminishes when an item is lost or unattended, to the extent that the contents may be examined by the person who has found the item. Furthermore, a lost item in a closed container such as a book bag would carry an even lesser expectation of privacy, especially in a school setting, which must ensure the safety and security of all students.
Therefore, in balancing the school’s strong interest in protecting its students against Polk’s low expectation of privacy in the unattended book bag, the court determined that search 2 was reasonable and appropriate because the school needed to not only identify the owner of the book bag but also ensure the contents of the book bag were not dangerous. The court did not comment on search 3 but instead left the resulting judgment on that search to the lower court to make, consistent with this new decision.
State v. Polk, Slip Opinion No. 2017-Ohio-2735.
by Erin Wessendorf-Wortman | Aug 17, 2016 | Student Education and Discipline
In December 2015, the Every Student Succeeds Act (ESSA) reauthorized the McKinney-Vento Education for Homeless Children and Youths program. Updated guidance was released by the U.S. Department of Education to help school districts understand the amendments to the McKinney-Vento Act, which will take effect October 1, 2016. These changes include the following:
- Greater emphasis on identifying homeless children and youths, requiring that state and local education agencies provide training for staff members to best meet the unique needs of homeless students.
- A focus on ensuring that eligible homeless students have access to academic and extracurricular activities, including magnet schools, summer school, career and technical education, advanced placement, online learning, and charter school programs.
- Ensuring that homeless children and youths remain in their school of origin, which is defined as the school the student attended when permanently housed. The student must be able to remain at this school for the duration of homelessness, or until the end of the school year during which they become permanently housed once more.
- Dispute resolution procedures which now address eligibility issues, school choice, and enrollment. In the event of a dispute between a parent, guardian, or youth and the local educational agency, the student must be immediately enrolled in the school in which he or she sought placement. The student must also be provided transportation to or from the school of origin for the duration of the dispute, at the request of the parent, guardian, or local liaison representing an unaccompanied youth.
- New authority for local liaisons to confirm the eligibility of homeless children and youths for programs offered through the U.S. Department of Housing and Urban Development.
This guidance and the amended McKinney-Vento Act aim to equip schools with the necessary tools they need to best serve homeless students and ensure that they continue to receive an education. More information and advice for helping homeless students can be found in a fact sheet released by the U.S. Department of Education. If you have questions on how these changes can be implemented within your school district, please contact an Ennis Britton attorney.
by Erin Wessendorf-Wortman | Aug 12, 2016 | Board Policy & Representation, Student Education and Discipline
Title IX of the Education Amendments of 1972 prohibits discrimination against students on the basis of sex for schools that receive federal funding. More recently, the definition of “sex” discrimination was expanded by federal regulatory agencies. In April 2014, the U.S. Department of Education Office for Civil Rights (OCR) indicated that Title IX’s sex discrimination prohibition extends to discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” In this guidance, OCR informed school districts that discrimination against students who identify as being transgender, whether in the curricular setting or in extracurricular activities, is prohibited.
This guidance was later reinforced when the U.S. Department of Education and the U.S. Department of Justice issued joint guidance in May 2016 stating that both federal agencies will treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX.
Therefore, according to the Education and Justice Departments’ interpretation and application of Title IX, school districts need to provide accommodations for transgender students. Ennis Britton has advised that decisions regarding transgender students be made on a case-by-case basis and in a team environment, wherein the parents, student, and administration may discuss the transition process for that student and the appropriate accommodations.
However, on August 3, 2016, the Supreme Court of the United States (SCOTUS) issued an order that has caused a number of school districts to question their compliance with the Education and Justice Departments’ previous guidance. The SCOTUS order has temporarily stopped the enforcement of a lower federal court order that directed a school district in Virginia to permit a transgender male to use the boys’ bathroom at his school. Gloucester County Sch. Bd v. G.G., 579 U.S. ___ (2016).
The SCOTUS order did not reverse or overrule the guidance, interpretation, or application of Title IX that is being promulgated and enforced by the U.S. Departments of Education and Justice. Rather, the SCOTUS order maintained the status quo for that student and that Virginia school while the case plays out in the lower courts.
Caution should be exercised in reading too much into this SCOTUS order for a number of reasons. First, the deciding vote of Justice Breyer was a “courtesy.” His vote should not be preliminarily construed to be in alignment with four other justices as it relates to accommodations of transgender students in schools. Second, this order does not put a hold on the guidance set forth by the U.S. Departments of Education and Justice. The order applies to the one student involved, G.G., and to the Virginia school seeking to deny the student accommodations within its buildings. Finally, the guidance from the Education and Justice Departments still exists and can be expected to be enforced.
School districts should consult legal counsel in determining how best to maneuver the legal, social, and political landscapes when considering if and how to accommodate transgender students within their schools. Special consideration should be given to the fact that without a stay on the guidance or a statement otherwise from OCR, OCR will continue to enforce its interpretation of Title IX, which will include seeking to halt federal, Title IX funds for non-compliant school districts.
by Erin Wessendorf-Wortman | Mar 26, 2015 | General, Labor and Employment
In a decision issued March 25, 2015, the U.S. Supreme Court decided that the Pregnancy Discrimination Act mandated that employers must provide accommodations to pregnant employees when needed if the employer provides accommodations to other employees with similar work restrictions. Young v. United Parcel Service, No. 12-1226 (Mar. 25, 2015).
In the underlying case, Ms. Young was a part-time driver for United Parcel Service (UPS) who was advised by her doctor, when she became pregnant, that she could not lift more than 20 pounds. UPS required drivers to be able to lift up to 70 pounds. UPS informed Ms. Young that she could not work while under a lifting restriction, and refused to provide Ms. Young with an accommodation for her pregnancy-related lifting restriction. Ms. Young consequently stayed home without pay during most of her pregnancy, eventually lost her employee medical coverage, and sued UPS alleging violations of the Pregnancy Discrimination Act.
The U.S. Supreme Court, though sending the case back to the trial court, held that policies may have the effect of discriminating against pregnant workers if the policies treat pregnant women different than similarly situated non-pregnant workers. For example, if a policy only permits on-the-job injured workers with accommodations, but does not provide pregnant workers with accommodations even though the pregnant workers have the same restrictions, the policy will run afoul of the Pregnancy Discrimination Act. Employers should be cautious when applying policy to ensure that the effects of the policy are not discriminatory towards pregnant workers.
This decision should be read in conjunction with the Equal Employment Opportunity Commission’s guidance regarding pregnant employees that was released on July 14, 2014. This guidance was discussed in Ennis Britton’s September 2014 School Law Review Newsletter. Together, the U.S. Supreme Court’s decision and the Guidance from the EEOC serve as reminders to employers that pregnancy conditions may be protected, and employers may be required to provide reasonable accommodations for pregnancy-related conditions.
by Erin Wessendorf-Wortman | Mar 17, 2015 | General, Labor and Employment
On February 25, 2015, the U.S. Department of Labor issued a Final Rule changing the Family and Medical Leave Act of 1993 (“FMLA”) definition of “spouse.” Effective March 27, 2015, spouses in same-sex marriages shall have the same opportunity as spouses of heterosexual marriages to exercise FMLA rights regardless of where they live. Therefore, even though Ohio prohibits same-sex marriage, if a couple was legally married outside of Ohio in a state that recognizes same-sex marriage, the same-sex spouse(s) must receive the protections of FMLA.
The U.S. Department of Labor issued this new rule in the wake of the United States Supreme Court decision in U.S. v. Windsor where the Court deemed the federal Defense of Marriage Act’s definition of spouse and marriage, which was limited to heterosexual marriages, unconstitutional.
The Final Rule modifies the definition of “spouse” in several ways.
- The definition of “spouse” will use a “place of celebration” rule rather than a “state of residence” rule. This means that the same-sex spouses who reside in a state that does not recognize same-sex marriage, but were legally married in a state that does, will be considered spouses under FMLA.
- The definition of “spouse” will expressly include persons in lawfully recognized same-sex and common law marriages, as well as marriages that were validly entered into outside of the United States, so long as those marriages could have been entered into in at least one state.
This change is intended to create a consistent application of FMLA rights across the country, even when different states have different laws regarding the underlying marriages. Further, this definitional change means that eligible employees, including those in a same-sex marriage, regardless of where they live, will be able to: take FMLA leave to care for their spouse with a serious health condition; take qualifying exigency leave due to their spouse’s covered military service; or take military caregiver leave for their spouse so long as the couple was legally married in a state that recognized the marriage.
Another change within this Final Rule entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met. This Final Rule also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
Therefore, effective March 27, 2015, employers covered by FMLA must follow the Final Rule changes promulgated by the U.S. Department of Labor, including this new definition of “spouse.” Currently, this change will only have FMLA implications, and will not impact other employment aspects for Ohio school districts (i.e. sick leave policies, benefits, etc.). However, by the end of June 2015, the U.S. Supreme Court should decide on whether state same-sex marriage bans are constitutional. If the U.S. Supreme Court decides that state same-sex marriage bans are unconstitutional, same-sex married couples will be entitled to all benefits received by heterosexual married couples.
