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.




























































































































































































































































































































































































































































Fourth Round of Direct Certification with Medicaid States Selected

Fourth Round of Direct Certification with Medicaid States Selected

The United States Department of Agriculture (USDA) recently announced that 14 new states, including Ohio, have been selected to participate in the Direct Certification with Medicaid Demonstration Projects for the 2023-2024 school year. With the 2023-2024 addition, a total of 39 states are now eligible to participate. The demonstration of Direct Certification with Medicaid for Free and Reduced-Price Meals (DCM-F/PR) authorizes states and school districts to use information from Medicaid data to identify eligible students to receive free or reduced lunches. The program allows students to be certified for free or reduced meals without household applications. In the 2019-2020 school year more than 1.2 million students were certified for free meals, and 240,000 students were certified for reduced-price meals.

To learn more about the program visit the USDA website.

What this means for your District: School districts will want to be on the watch for information from the USDA in how the Medicaid system will “talk” to the USDA’s system for reporting students who are eligible for free or reduced-price meals.







































































































































































































































































































































































































































Recent Federal Changes Impacting Pregnant and Nursing Workers

Recent Federal Changes Impacting Pregnant and Nursing Workers

In an attempt to create new legal protections and remedies for individuals who are pregnant or nursing, Congress recently passed two acts, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA), which will expand the number of nursing and pregnant workers granted protections, including school employees.

Providing Urgent Maternal Protections for Nursing Mothers Act

In 2010, the Break Time for Nursing Mothers Act was signed into law, which required employers to provide nursing mothers a reasonable break time in a private and shielded place to express breast milk for a minimum of one year following the child’s birth. However, these requirements applied only to employees not exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement.

On December 29, 2022, President Biden signed the PUMP Act into law, which expands the rights granted by the Break Time for Nursing Mothers Act to include exempt employees of covered employers. This change, which adds over nine million workers, will now grant all salaried employees, such as teachers, similar protections.

The PUMP Act, much like the Break Time for Nursing Mother Act, requires employers to provide (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion. Additionally, the PUMP Act authorizes an aggrieved employee to bring a claim against an employer who violated the PUMP Act, as well as prohibits that employer from retaliation against the employee as a result of that claim. Furthermore, the PUMP Act has adopted all available remedies under the FLSA, such as reinstatement, promotion, payment of wages lost, and compensatory damages. The U.S. Department of Labor published a fact sheet that lays out additional information regarding the PUMP Act. For example, the fact sheet discusses how an employee may be compensated for break time to pump, whether that be through paid break time or being completely relieved from their duties. The DoL Fact Sheet can be found here.

Pregnant Workers Fairness Act

In addition to the PUMP Act, Congress passed the Pregnant Workers Fairness Act (PWFA), which will go into effect June 27, 2023. The Pregnancy Discrimination Act of Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits employers from discrimination on the basis of pregnancy and requires an employer to treat pregnant employees in the same manner as other employees who are similar in their ability or inability to work. While this act does prevent discrimination against pregnant employees, it does not require an employer to comply with any accommodation requirements. This gap between the prohibited discrimination and lack of accommodation requirements has now been filled by the PWFA.

Under the PWFA, Congress has made it unlawful for an employer with 15 or more employees to:

  • Require an employee to accept an accommodation without a discussion about the accommodation;
  • Deny a job or other employment opportunities to a qualified employee or application based on the person’s needs for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA; and
    Interfere with any individual’s rights under the PWFA.

These restrictions under the PWFA will protect employees and applicants of covered employers, which include schools, who have “known limitations related to pregnancy, childbirth, or related medical conditions.” In addition to these restrictions, the PWFA noted that an individual may still be considered a qualified employee if the inability to perform an essential function is for a temporary period, the essential function can be performed in the near future, and the inability to perform the function could be reasonably accommodated.

Recent Litigation Surrounding Pregnancy Discrimination

Congress’ actions come following recent litigation where the Equal Employment Opportunity Commission (EEOC) filed suit against a nursing and rehabilitation facility. The EEOC asserted that the facility had established policies requiring employees to inform the company when they were pregnant as well as obtain a note from their doctor releasing them to work without restrictions. The EEOC additionally alleged that the facility denied pregnant employees that had restrictions with reasonable accommodations and went so far as to terminate them, while other employees with similar restrictions were provided accommodations.

The suit, which was brought in June of 2021, came to a close April 12, 2023 with a decision finding in favor of the EEOC. The decision ordered the facility to pay $400,000 split between 11 employees, as well as issued a decree that would prohibit the facility from discrimination on the basis of pregnancy in the future, including denying pregnant employee’s modifications and a requirement that pregnant employees obtain a doctor’s note.

What does this mean for your district? To comply with the PUMP Act and the PWFA, districts should update their reasonable accommodation and nursing employee break policies to reflect the new requirements. Additionally, districts should designate an adequate space for employees to express breast milk that is in compliance with the PUMP Act, meaning the space must be (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion.

































































































































































































































































































































































































































Update: USDOE New Proposed Rule on Title IX

Update: USDOE New Proposed Rule on Title IX

On April 6th, the U.S. Department of Education proposed a rule that would build upon Title IX and apply to federally funded K-12 schools. The proposed rule would prohibit a blanket ban or a “one size fits all” policy that bans transgender students from participating on teams consistent with their gender identity. While prohibiting categorical bans, the policy would provide schools some flexibility when determining eligibility criteria. Specifically, the Department proposed that any adopted criteria must be substantially related to the achievement of an important educational objective and minimize harms to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied. 

In a released Fact Sheet, the Department stated that to comply with the above requirements and to ensure fairness and prevent sports-related injuries, a school must look at the sport, the level of competition, and the grade or education level. The Department further clarified that under these eligibility factors, elementary school students would generally be able to participate in school sports according to their gender identity. However, as competition rises in high school level sports, the Department stated schools may assess the sport, level of competitiveness and the age of student more and may limit participation so long as that limit meets the regulation’s requirements.

This proposed rule came on the same day that the U.S. Supreme Court refused to approve West Virginia’s request to enforce a state law that would ban transgender women and girls from participating in school sports teams consistent with their gender identity. The request, which landed itself on the Court’s emergency docket, came after a transgender student who wanted to participate on the girls track team challenged the state law. After a temporary order from the Fourth Circuit Court of Appeals which precluded the law from being enforced while the case was being considered, West Virginia’s Attorney General sought emergency relief from the Supreme Court, but the Court refused to grant the relief.

What does this mean for your district? There is still a lot to be decided on this topic, both from a regulatory standpoint as well as with case law. The U.S. DOE proposed changes will be published to the Federal Register, where it will be open for 30 days of public comment. Following the 30 days the rule may be altered or published depending on comments received. As written, the regulations will require deliberation before restrictions or bans are put in place, and will make restrictions or bans in less competitive activities (e.g. younger students, junior varsity) more difficult to support. This level of local control will ensure that this sometimes divisive topic remains something districts will continue to have to work through. As for the Supreme Court Decision, the general trend in sports-related cases still points toward discouraging bans on transgender athletic participation. Decisions like this case might present a legal barrier for Ohio’s most recent legislative efforts to address transgender athletic participation. Stay tuned for future updates.