Special Education Update: DOE Issues Letter on Military-Connected Children with Disabilities

Special Education Update: DOE Issues Letter on Military-Connected Children with Disabilities


On November 9, the United States Department of Education released a letter on military-connected children with disabilities. The letter highlights the additional challenges that families of military-connected children with disabilities may face due to frequent separation and disruptions in the continuity of IDEA services.

The letter additionally shared a list that the Department of Education created that combined resources from across the Federal government for parents and families of military-connected children with disabilities. The list includes several resources, such as the 2023 IDEA general supervision guidance, OSEP’s 2022 letter on education for highly mobile children, and guides from organizations such as the Military Child Education Coalition. The letter stated that this list offers a “clear explanation of the procedures every military-connected family with a child who is eligible for or receiving IDEA services should expect from the education system when they move from one jurisdiction to another.”

Finally, the letter noted that for military-connected children with disabilities, transitions are inevitable. Still, with the help of Expect, Engage, and Empower: Successful Transitions for All!, OSEP can provide resources for families facing the transition to adulthood.















































































































































































































































































































































































































































































Sixth Circuit Sides with Parent in Free Speech Case

Sixth Circuit Sides with Parent in Free Speech Case

McElhaney v. Williams (August 25, 2023).

In a late August decision , the Sixth Circuit reversed a District Court’s decision, finding in favor of a parent’s First Amendment rights, and sending a message to schools and their athletics staff regarding how they ban parents from property and events.

A school district in Tennessee found itself in federal court after it suspended a parent from attending a week’s worth of softball games. The parent, whose child played on the high school softball team, sent two lengthy texts to the coach discussing his frustration after the coach had benched his child. Subsequently, the school banned the parent from attending any softball games the following week after finding that the text messages were inappropriate and violated team policy. The parent sued the district, arguing that the district retaliated against him for exercising his constitutionally protected right to free speech.

Reviewing the District Court’s opinion, which sided with the school, the Sixth Circuit stated that the First Amendment has long protected citizen’s right to criticize public officials. The Sixth Circuit elaborated that that protection extends to parents, meaning that “schools cannot regulate the content of the parents’ speech about their child to a school employee who interacts with the child.”

The school district argued that schools have an interest in avoiding disruption, and the Sixth Circuit agreed; however, it stated that the school’s interest does not apply “to run-of-the the mill adult speech targeting school officials.” Additionally, the district argued that it had an informational sheet that it had sent out, which specifically stated that parents and coaches were not allowed to discuss playing time. However, the Sixth Circuit found that an information sheet does not override a parent’s constitutional rights. In the end, the Sixth Circuit found the speech was critical of a coach’s actions, but the speech was not threatening, harassing or disruptive, and, therefore, was protected by the First Amendment.

What does this mean for your district?

The Sixth Circuit was clear in the conclusion of its opinion:
“in this situation, it is clearly established at a low level of generality that a school official may not retaliate against the parent for the content of his speech.”

Districts should be aware that even if a school or team policy bars parents and coaches from discussing playing time, parents maintain a constitutionally protected right to address their concerns provided they do so in a non-harassing, non-threatening and non-disruptive manner. Districts should educate their staff on parents’ free speech rights, especially when it comes to parents’ right to air grievances regarding their student-athletes.










































































































































































































































































































































































































































































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.

















































































































































































































































































































































































































































































Court Finds Coach Retweeting Book Passage was Fair Use

Bell v. The Milwaukee Bd. of Sch. Dirs., 123 LRP 2649 (E.D. Wis. 12/21/22).

The Eastern District of Wisconsin recently dismissed an author’s copyright infringement claim against a high school basketball coach and school district finding in favor of the school district’s fair use defense.

Dr. Keith Bell, author of the book “Winning isn’t normal” sued a high school basketball coach and school district after the coach retweeted a famous excerpt from the book. Bell alleged that not only did the coach violate the copyright of the book as a whole when he retweeted the passage, but separately violated the copyright of the famous “Winning isn’t normal” passage from within the book as well.

The school district asserted that the retweet was fair use under the Copyright Act of 1976. Fair use, which is a defense to copyright infringement claims, allows for the use of copyrighted work, under certain conditions, without permission of the copyright owner. Under the Copyright Act, a court must consider four factors when applying the fair use doctrine: (1) the purpose and character of the use, including whether it’s for commercial or nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work.

The court found that while the coach’s retweet copied the entirety of a “somewhat creative passage,” his action was balanced against the fact that the passage was freely available on the internet and the author’s website. Additionally, the court noted that while the retweeted passage was the “heart” of the book, the copied passage was a relatively small portion of the book and was entirely noncommercial. Furthermore, the court found that the retweet did no damage to the author’s financial position, and that the retweet may even help the author’s position by increasing the public’s interest in the book as a whole. Thus, the District Court held that the coach’s retweet of the “Winning isn’t normal” passage was fair use and the author’s claim had to be dismissed.

What does this mean for your district? To avoid copyright infringement claims, districts should train their staff on how to avoid using or sharing copyrighted material without permission. With the rise of school districts and district employees using social media, school districts should ensure that any social media training should include what may and may not be shared to avoid copyright infringement claims. Fair use is not as simple as some believe in terms of educational use and so while the coach’s actions were vindicated here, caution is warranted.

















































































































































































































































































































































































































































































The 9th Circuit Rules On Graduation Dress Code

The 9th Circuit Rules On Graduation Dress Code

Waln v. Dysart Sch. Dist., 54 F.4th 1152 (9th Cir. 2022).

In 2019, Dysart School District prohibited a student from decorating her graduation cap. The school district had a graduation policy that prohibited students from decorating their graduation caps; however, the student had requested a religious exemption. The student, a member of the Sisseton Wahpeton Oyate tribe of the Sioux Nation, wanted to decorate her cap with an eagle feather that had been blessed in a religious ceremony and was to be worn “in times of great honor.” The district, however, rejected her request. When the student showed up to graduation with the decorated cap, school officials did not let her inside the venue. However, school officials permitted other students into the venue who had decorated caps that also violated the dress code. For example, the district allowed one student who decorated their cap with a breast cancer sticker inside the venue.

The student subsequently brought claims against the district, alleging that the district violated her freedom of speech and religion. Specifically, the student claimed that prohibiting her from wearing the non-secular decorated graduation cap, while other secular decorated caps were permitted, violated the free exercise and speech clause of the United States Constitution.

The Ninth Circuit first analyzed the free exercise claim. The court noted that if the district did not enforce the policy to exclude a student’s secular message, such as the breast cancer sticker, then, without some appropriate justification, the district could not enforce its policy against the plaintiff. The court thus held that because the school district did not apply the policy “to the same degree” towards all students but rather executed the policy in a “selective manner,” the district potentially violated the free exercise clause of the U.S. Constitution.

The Ninth Circuit then turned to the free speech claim. The court emphasized that school districts may not engage in viewpoint discrimination, which occurs when the government restricts speech on the basis of the specific “ideology or the opinion or perspective of the speaker.” The court ultimately found that the school’s general policy of prohibiting decorated caps was not viewpoint discrimination. The court held that on its face, the policy is viewpoint neutral because “it prohibits all speech from all students on all graduation caps at the ceremony.” However, even if a policy is viewpoint neutral on its face, it can still violate the Constitution when not applied uniformly. Because the school district, in this case, applied the viewpoint neutral policy in a selective way, the school did infringe on the student’s freedom of speech.

Thus, the Ninth Circuit ultimately determined that the school district’s actions were likely a violation of the free exercise and speech clauses of the Constitution, holding that “general applicability requires, among other things, that the laws be enforced evenhandedly.” The case was remanded to the trial court.

What does this mean for your district? There remains support for the conclusion that a court would find that a policy that bans all decorations from all caps is viewpoint neutral and thus not an infringement on students’ first amendment rights. However, if your district intends to have such a policy, officials should be trained to apply the policy evenhandedly in order to refrain from violating a student’s rights.