Court Determines Dress Code May be Covered Under Title IX

Court Determines Dress Code May be Covered Under Title IX

The board of trustees of a North Carolina charter school discovered that designing a dress code based on the view that girls are “fragile vessels” could violate both the Equal Protection Clause and Title IX of the Education Amendments of 1972.

Parents of several students at Charter Day School (CDS) filed suit, challenging the dress code requiring K-8 girls to wear a skirt, jumper or skort unless they were in PE class or for certain field trips and other special events. Boys, on the other hand, were allowed to wear shorts or pants at school. Parents complained that the requirement of skirts for girls prevented their daughters from engaging in numerous physical activities including using the swings playing soccer, and even comfortably participating in emergency drills that required students to crawl or kneel on the floor.

The District Court concluded that CDS was a state actor for purposes of the Equal Protection Clause, but determined that dress codes are exempt from Title IX’s prohibitions against gender discrimination. On rehearing en banc, the 4th District Court of Appeals affirmed that in certain circumstances, a private actor could be engaged in state action. In this case, the court determined that “…implementing the skirts requirement based on blatant gender stereotypes about the proper place for girls and women in society” is a clear violation of the Equal Protection Clause.

The court went on to consider the Title IX claim, overturning the District Court’s ruling. Title IX provides that“…no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

In reaching its conclusion, the 4th Circuit noted that Congress did not list any specific discriminatory practices in Title IX, but the law was instead intended to generally prohibit explicitly sex-based policies. Since the effect of the dress code was to prohibit female students from participating in certain school activities, it denied them the full benefit of their education and subjected them to discrimination because of their sex.

Accordingly, the court concluded that Title IX applies unambiguously to sex-based dress codes. The case was remanded to the District Court for further proceedings consistent with its opinion.

What this means for your district: While few schools still embrace such gender stereotypes, boards are cautioned to review dress codes and any other gender-specific policies for conformity with Title IX and the Equal Protection Clause.

Peltier v. Charter Day School, Inc., No. 20-1001 (4thCir. 2021)      



























































































Special Education Contingency Plans For When Disasters Strike

Special Education Contingency Plans For When Disasters Strike

In recent weeks, school districts across the United States have been forced to respond to unexpected disasters in addition to all of the ongoing pandemic-related challenges. From tragic school shootings to catastrophic tornados, schools have continued to adapt as best they can. These situations serve as powerful reminders about the importance of developing contingency plans for how to support some of the most vulnerable students – those with disabilities – when disasters strike.

Recent pandemic guidance sheds some light on the question of what a district’s obligations might be when schools are unexpectedly disrupted due to unforeseen circumstances. In 2020, the U.S. Education Department released insightful guidance for districts amid the emerging COVID-19 pandemic. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, U.S. Department of Education (March 12, 2020).

The ED declared that when a school district is closed and not providing any educational services to the general student population, then the school district is not required under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act to provide services to students with disabilities. However, once a school resumes in some fashion, a district’s obligation to provide services for disabled students changes, even if educational programming is provided in a different format such as remote learning. At that point, districts are obligated to “make every effort” to fully implement a student’s IEP or 504 plan, including providing all special education services and accommodations for students.

In the event that a school is unable to provide the services, special education teams may be expected to convene and consider whether compensatory services should be offered at some point. Additionally, teams should consider whether any type of recovery services might be provided to help compensate for any regression and learning loss.

As we have seen during the pandemic, schools that are able to adapt quickly to disasters are better able to support their students with disabilities, prevent regression and learning loss, and reduce or altogether avoid costs associated with compensatory education and recovery services. The ED stressed the value of creating contingency plans to address unexpected changes in learning platforms and resources. When contemplating the question of whether special education teams should consider distance learning plans as a contingency during the pandemic, the ED responded “Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach an agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.” This same concept is easily extrapolated to other types of disasters.

The lessons learned during the pandemic provide a solid foundation for schools in developing contingency plans. These plans may address the following needs:

  • Available Resources. School districts should have a solid understanding of what resources are available in their districts and communities to pull from in an emergency situation so that they can quickly access them. It is also helpful to maintain backup technology devices such as computers and hotspots to help facilitate the district’s quick response.
  • Supports for displaced students. Students who experience natural disasters such as floods and tornados may temporarily lose housing. In addition to IDEA and Section 504, students may have rights under the McKinney-Vento Homeless Assistance Act. Having access to technology such as laptops and hotspots, as well as maintaining connections with neighboring districts, educational service centers, and county agencies help schools adapt quickly.
  • Team meetings. It is important for special education teams to convene meetings in a timely fashion so that your knowledgeable professionals are able to problem solve and address unique challenges that a student with disabilities might face because of the disaster. Utilizing technology and staff to facilitate meetings quickly is important.
  • Additional Service and Staff Needs. Not only are students impacted by disasters, but staff as well. Districts may need to quickly access additional staff to fill service gaps or expand services that are provided to students. Alternatives might include utilizing telehealth services and working with neighboring districts and ESCs for backup support.
  • Documentation. It is critical that districts have an effective way to document what they are doing for students with a disability at all times, but especially during a pandemic. This data becomes critical for special education teams as they explore future student needs, and also helps defend against parent and advocate challenges that may come your way.  

The value of developing solid contingency plans before a district faces a disaster is significant. School districts should work with their colleagues and legal counsel to develop a strategy for future needs. A member of the Ennis Britton special education team is here to help support your efforts.

It’s Official! New Financial Literacy Requirements, Temporary Rule for Substitutes

After several delays, Governor DeWine signed the highly anticipated Senate Bill 1 into law on October 28, 2021. Section 4 of the bill was signed as an emergency measure and is effective immediately. The remaining sections of the bill become effective January 27, 2022.

A key provision of SB 1 is the requirement that high school students complete ½ unit of financial literacy. The course may be taken as an elective, or in lieu of ½ credit of mathematics. If the student elects to take financial literacy as part of their math requirements, the credit cannot take the place of Algebra II or any course that the state board requires an end-of-course examination in. The new requirement will apply to students who enter ninth grade on or after July 1, 2022. Students enrolled in non-public schools are not required to take financial literacy unless they are participating in a state scholarship program.

A related provision of the bill establishes new licensure requirements for teachers who instruct in financial literacy. Beginning in 2024-25, teachers must have an educator license validation to teach financial literacy. The state board is tasked with adopting additional requirements for the license validation in consultation with a new council that they are required to establish. Teachers who hold valid licenses in social studies, family and consumer sciences, or business education are not required to obtain the license validation.

School districts are required to pay for any costs incurred to meet the new requirement but may seek reimbursement through the Ohio Department of Education. A new fund called the Ohio Financial Literacy Fund was established through SB 1 to help districts cover the costs. As we mentioned in our October 2021 issue of School Law Review, ESCs have been added to the list of entities eligible for reimbursement.

Perhaps the most anticipated provision of Senate Bill 1 is included in Section 4 of the bill. This section temporarily authorizes school districts to establish local education qualifications for individuals to serve as substitute teachers during the 2021-22 school year that is less burdensome than the current state requirements, including that they are not required to have a post-secondary degree. Individuals must be deemed of good moral character and complete criminal background checks. This provision is intended to ease the burden on schools that are having a difficult time finding substitute teachers amid the ongoing pandemic. The Ohio Department of Education has begun issuing temporary one-year, nonrenewable substitute licenses for individuals in accordance with this provision.  

The New Payment in Lieu of Transportation Process

The New Payment in Lieu of Transportation Process

The Cost of PIL Set to Increase Significantly

School districts can expect the cost of PIL to at least double starting this school year. Under prior law, districts paid a flat cost of $250 per student. Now, districts must pay at least 50% of the average cost of pupil transportation as established by ODE, and may pay up to 100%. The per pupil cost of transportation over the past few years has been around $1,000, which means parents will receive at least $500 this year alone.

Although grants are being made available to help offset the costs, districts will foot the bill since ODE is no longer reimbursing districts for PIL. Under the revised law, ODE is now authorized to determine if a district is out of compliance, and force a district to pay at least 50% of the cost of transportation.

Let’s Talk Timing and Substance

Districts are now required to make a determination about PIL no later than 30 days before the start of the school year, or 14 calendar days if the student is enrolled later. To help schools make decisions more quickly, the bill now authorizes a board of education to delegate PIL decision-making to superintendents, although the board is still required to approve the decision(s) at the next scheduled meeting. Once a decision is made, districts must now issue a letter not only to parents, but also to the community/non-public schools and the state board. The letter must include a detailed explanation of why a PIL determination was made.

Keep in mind that to be eligible for PIL, a student must be eligible to receive transportation from the district to begin with. The school where the student attends must be a chartered school, and also must be less than thirty minutes away from the building where the student normally would attend. Districts will consider the same six factors that existed under the prior version of the law when making a determination.

Finally, districts should be aware that the revised law now allows parents to authorize a community/non-public school to act on their behalf once they have submitted a request for transportation. The authorized schools may represent the parents in all proceedings moving forward, including mediation. School districts should verify that a parent has granted this authorization.  

What can you do to prepare?

As you prepare to implement the changes, here are some helpful hints to keep in mind:

  1. Timely planning and execution are really critical under this new process.
  2. Ensure careful documentation of evidence and reasoning behind PIL decisions.
  3. Work with counsel to prepare letters to be sent to parents, community/non-public schools, and ODE.
  4. Create an effective presentation for the Board that includes rationale, details and discussion for each student.
  5. Consider and plan for increased costs for PIL that are in line with new minimum amounts.
  6. Update your forms throughout and train your staff.

Tools to Help You on Your Way

Ennis Britton recently hosted a webinar to help districts implement the new PIL process and adjust to other transportation changes enacted through the budget bill. Attorneys Pam Leist and Hollie Reedy were joined by special guest and transportation expert Pete Japikse to discuss the new laws and provide practical pointers. Participants received template forms and sample resolutions to help facilitate the transition to the new process. If you missed the webinar, an archive is available for purchase by emailing Templates are included at no additional cost to all registered participants.

School Mask Mandate Updates – September

School Mask Mandate Updates – September

U.S. DOE’s Office for Civil Rights Enters the Fray by Initiating Discrimination Investigations Against States with Mask Prohibitions

On Monday, August 30, the U.S. Department of Education’s Office for Civil Rights (OCR) opened investigations into five states that prohibit schools from setting universal mask mandates. Letters were sent to the chief state school officers of Iowa, Oklahoma, South Carolina, Tennessee, and Utah. Several state school chiefs who received the letter said they agreed that their school districts should have the flexibility to set mask requirements if they deem them necessary.

OCR will specifically investigate whether statewide prohibitions on universal indoor masking discriminate against students with disabilities who are at heightened risk for infection of COVID-19 by preventing them from safely attending in-person education. Specifically, they will determine whether these prohibitions are a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act which collectively mandate that schools are required to provide a free and adequate public education (FAPE) to students with disabilities and also provide programs and facilities that are accessible to individuals with disabilities.

Education Secretary Miguel Cardona had previously sent letters to each of the states who will be subject to the OCR’s investigations. In it, he noted that “the safe return to in-person instruction requires that school districts be able to protect the health and safety of students and educations, and that families have confidence that their schools are doing everything possible to keep students healthy.”

The Department will continue to monitor, but did not launch an official investigation into, Florida, Texas, Arizona, or Arkansas as they have voluntarily suspended enforcement of their policies while litigation is ongoing as described below.

Florida Judge Invalidates Governor’s Executive Order

On Friday, August 27, a Florida judge ruled that school districts can legally require their students to wear masks to prevent the spread of COVID-19. He stated Governor Ron DeSantis overstepped his executive order by banning school districts from requiring students to wear masks.

The governor has argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children. However, the judge noted, it exempts government actions that are needed to protect public health and are reasonable and limited in scope. A school district’s decision to require student masking to prevent the spread of the virus falls within that exception.

Through his opinion, the judge cited Florida Supreme Court decisions which found that individual rights are limited by their impact on the rights of others. For example, adults have the right to drink alcohol but not drive drunk, and that there is a right to free speech, but not to harass or threaten others. As a result, he said that school boards could reasonably argue that mask-less students endanger the health of other students and their teachers, and mask policies should be up to them to determine.

Despite the ruling, the Florida Department of Education on August 30 began withholding school board member salaries from two school districts that require masks in classrooms. Florida Education Commissioner, Richard Corcoran, said he is following through on the orders of the State Board of Education and stated funds would continue to be withheld monthly until each school board complied with state law and rule.

Lawsuit in Texas Filed

On Tuesday, August 17, a lawsuit was filed in Texas claiming that the state is discriminating against medically vulnerable students by failing to accommodate their disabilities. The parents filed suit on behalf of their disabled children, all of who are under age 12 and ineligible to receive a COVID-19 vaccine.

The parents claim that the ban violates Section 504 and Title II of the ADA by excluding students with underlying medical conditions from district programs and failing to make reasonable accommodations that would allow those students to attend school. In addition, they are asking a judge to issue a temporary restraining order that would allow districts to implement mask mandates and prohibit the state from withholding funds from districts that choose to make them mandatory.

The lawsuit challenges an executive order by Governor Greg Abbott that declares school systems cannot require students or staff to wear a mask. It also noted that districts must allow individuals to wear a mask if they choose to do so. As a result of ongoing litigation, the Texas Education Agency issued an updated public health guidance that stated it would not be enforcing the mask provisions in the interim, but would make additional guidance once the court issues are resolved.

Other Actions Afoot

In Arkansas, a judge pressed pause on the state law that prohibits local officials from setting mask mandates, meaning school districts can – at least for now – set their own local mask requirements. Tennessee’s governor has signed an executive order requiring schools to allow families to opt out of mask mandates. In Utah, local health departments can issue 30-day school mask mandates with approval from the state or county government.