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.
by Erin Wessendorf-Wortman | Jun 30, 2014 | General, Legislation
House Bill 487, the mid-biennium education bill, reviewed in last month’s ERF School Law Review newsletter, was signed into law on June 16, 2014. Except as indicated otherwise in the statute, HB 487 becomes effective September 15, 2014. Some of the upcoming changes in the law include the following:
- College and Work-Ready Assessment System-
- For students entering the 9th grade on or after July 1, 2014, the OGT requirement will be replaced by the College and Work-Ready Assessments System, which is comprised of two assessments:
- (1) Nationally standardized assessment measuring college and career readiness and
- (2) End-of-Course Exams.
- High School Graduation Requirements-
- For students entering the 9th grade on or after July 1, 2014, the OGT is no longer a requirement for graduation.
- Instead, students must meet one of the following options:
- (1) Score at “remediation-free” levels in English, math, and reading on the nationally standardized assessment;
- (2) Obtain a minimum cumulative performance score on end-of-course exams; or
- (3) Obtain a passing score on a nationally recognized job skills assessment andobtain either an industry-recognized credential or a state agency- or board-issued license for practice in a specific vocation.
- Statewide Curriculum Requirements-
- Extends exemption from the Ohio core curriculum requirements for graduation (now referred to solely as “requirements for graduation”) until July 1, 2016
- For students entering 9th grade for the first time on or after July 1, 2014 (Class of 2018), in addition to the current requirements, the following changes must be satisfied for the exemption to apply:
- The student has a Student Success Plan (previously called “individual career plan”) and
- The student meets the other graduation requirements, including the following curricular changes:
- 4 units of math (instead of 3 under current law),
- One must be probability and statistics, computer programming, applied mathematics, quantitative reasoning, or any other course approved by ODE before October 1, 2014;
- 5 elective units (instead of 6 under current law); and
- 3 units of science which are inquiry-based laboratory experience that engage students in asking valid scientific questions and gathering and analyzing information.
- Third-Grade Reading Guarantee-
- Allows school districts to submit an alternative staffing plan for the 2014-2015 or 2015-2016 school years if the school district is unable to provide the number of teachers who meet the criteria needed to teach 3rd grade students below grade level.
- Establishes the English-language arts assessment to be administered to 3rd graders during the 2014-2015 school year:
- Fall- Same assessment administered during the 2013-2014 school year;
- Spring-
- For students who failed to obtain the minimum score on the assessment and would be subject to retention—same assessment administered during the 2013-2014 school year; and
- For students who have obtained the needed minimum score and would not be subject to retention—the PARCC assessment.
- Online Administration of Assessments-
- For the 2014-2015 school year, school districts are not required to administer assessments through an online format.
- School districts have the option to administer the assessments in any combination of online and paper format.
- Safe Harbor for the 2014-2015 School Year-
- School districts may enter into an MOU with the teachers’ union stating that the value-added progress dimension score from the 2014-2015 school year will not be used to make decisions about teacher dismissal, retention, tenure, or compensation.
- Prohibits various penalties and sanctions due to a school district’s report card rating.
- Prohibits from assigning an overall letter grade to schools and school districts.
- Emergency Management Plan-
- Changes the name of School Safety Plan to Emergency Management Plan.
- Requires the administrator of a school district to develop and adopt a comprehensive Emergency Management Plan including a floor plan, site plan, and emergency contact information, as well as protocols for threats and emergency events.
- “Administrator” means superintendent, principal, chief administrative officer, or other person having supervisory authority over the school district.
- Requires the administrator to review and certify the accuracy of the plan to ODE by July 1st of each year.
- In addition to current requirements, the plan must be updated whenever the emergency contact information changes.
- Requires the administrator to schedule an annual emergency management test.
- “Emergency management test” means a regularly scheduled drill, exercise, or activity designed to assess and evaluate the Emergency Management Plan.
- The State Board must adopt standardized rules and standardized forms for Emergency Management Plans.
- Because it is unlikely that the State Board will have adopted rules and standardized forms prior to the effective date of September 15, 2014, the expectations for the 2014-2015 school year are unclear at this time.
- Career-Technical Education-
- Expands requirement to provide career-technical education to students in grades 7-12.
- If a Board of Education decides not to provide career-technical education for students enrolled in grades 7-8 in a particular school year, the Board must adopt a resolution and submit it to ODE by September 30th of that school year.
