Court Determines Dress Code May be Covered Under Title IX

Court Determines Dress Code May be Covered Under Title IX

by | Nov 10, 2022 | General

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)      

 

 

 

 

 

 

 

 

 

 

 

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SCOTUS to Consider Exhaustion of Remedies Case

SCOTUS to Consider Exhaustion of Remedies Case

by | Nov 10, 2022 | General, Special Education

The Supreme Court of the United States has agreed to hear a special education case concerning a family’s obligation to exhaust administrative remedies before filing a claim under the Americans with Disabilities Act. The case of Perez v. Sturgis Public Schools involves a former student of the Sturgis, Michigan school district who was denied a sign language interpreter for many years. The family filed a due process complaint, claiming violations of the IDEA, the ADA, and other statutes. The parties settled the IDEA complaint when the district agreed to pay for post-secondary compensatory education and sign-language services. The former student then sued the district and federal court for monetary damages for ADA violations. The school district argued that, due to the settlement, Perez failed to exhaust the administrative proceedings under the IDEA. Both the District Court and the US Court of Appeals for the 6th Circuit sided with the school district – the latter finding that there was no applicable exception to the exhaustion provision under the IDEA, despite the fact that the administrative law judge could not award monetary damages. For that reason, the settlement of the IDEA due process complaint shields school districts from related claims under Section 504 or the ADA. The Appellate Court’s decision is consistent with similar findings in the 8th and 10th Circuit Courts of Appeals. However, suggesting that there may be conflicts among other federal appeals courts, the SCOTUS has agreed to hear the appeal. This is especially important since the high court’s earlier decision in Fry v. Napoleon Community Schools left “for another day” the question of whether exhaustion of IDEA proceedings is necessary when seeking monetary damages that in IDE a hearing officer cannot award. Although the Supreme Court recently ruled that monetary damages for emotional distress were not available under the rehabilitation act of 1973 the court has not directly considered similar damage requests under the ADA. Its consideration of the Perez case will afford the High Court that opportunity.

 

What This Means for Schools: The court’s ruling will have a significant impact on the remedies available to litigants when the IDEA, Section 504, and the ADA converge.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

OCR Provides Guidance for Pregnant and Parenting Students

by | Nov 10, 2022 | General

 U.S. Department of Education’s Office for Civil Rights (OCR) recently released guidance linking the protections of Title IX of the Education Amendments Act to students and employees based on pregnancy and related conditions. The October 4, 2022 guidance reiterated that the protections of Title IX that prohibit discrimination on the basis of pregnancy have been in place since 1975. The guidance goes on to provide that schools may not discriminate against any student, or exclude any student from their education program or activity, including any class or extracurricular activity, based on the student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. Furthermore, a school may not discriminate against or exclude from employment any employee or applicant on these bases.

Schools are advised to treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability of a student. For employees, schools must treat pregnancy and its related conditions the same as any other temporary disability for all job-related purposes.

The guidance goes on to state that if a school does not have a leave policy for students, or if a student does not otherwise qualify for leave under existing district policies, the school must nonetheless provide leave to a student for pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, for as long as the student’s physician deems such leave to be medically necessary. After the leave expires, the student must be reinstated to the status the student held when the leave began.

Finally, the resource states that a school must ensure that its teachers’ policies and practices do not discriminate against students because of pregnancy and related conditions. This means that a teacher may not refuse to allow a student to submit work after missing a deadline because of absences due to pregnancy or childbirth, and if part of the teacher’s grading is based on class attendance or participation, the student must be allowed to earn the miss credits and be reinstated to the student’s pre leave status.

As with other Title IX matters, students may file a complaint through their school’s grievance process or directly with OCR. For OCR’s purposes, a complainant can include students, parents and guardians, employees, community members, and others, including anyone who observes discrimination in educational programs based on sex, including pregnancy and related conditions.

What This Means for Schools: school districts are encouraged to review their policies and practices regarding student absences, return to school, and policies on work completion to ensure their compatibility with OCR expectations.

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

Ohio Supreme Court Asked to Review Guidance Counselor’s Right to Retain Outside Attorney During Arbitration

by | Nov 8, 2022 | General

On January 1, 2022,An Ohio guidance counselor who opted out of the union has asked the Ohio Supreme Court to overturn a decision of the 11th District Court of Appeals which found she did not have a right to use her own attorney during an arbitration hearing.

Revised Code 4117.04 requires public employers to extend and recognize the right of a designated union representative to serve as the exclusive representative of the bargaining unit included in a CBA. In the event that an employee wishes to obtain their own attorney at their own expense, unions will typically have procedures for the employee to waive their right to protection and representation under the CBA. If a district allows private representation in meetings such as predisciplinary hearings, they may face an unfair labor practice charge.

The employee contends that denying her choice of legal counsel infringes on the First and Fifth Amendments of the United States Constitution. The lower court held that the employee’s constitutional rights were not violated because the arbitration process was established in a collective bargaining agreement between the school district and the union. The court found that the employee herself was not legally entitled to initiate the grievance and arbitration process so her rights to free speech and due process were not violated. By requesting that the union submit the grievance to arbitration, as required by the collective bargaining agreement, the employee “ceded her standing to adjust the grievance.”

The Ohio Supreme Court is not required to take this case. If it decides not to hear the appeal, then the 11th District Court’s decision will remain prevailing law. We will monitor it for further developments.

How this affects your district? The employee in this case is represented by the Buckeye Institute, which has been involved in collective bargaining litigation since the U.S. Supreme Court issued its decision in Janus declaring that fair share fees were unconstitutional. Ennis Britton has seen an increase in the number of employees who request to use their own legal counsel rather than the representation provided by public sector unions. This can put a school district in the middle of a fight between its employee and the union representing bargaining unit members, which may even result in the filing of an ULP charge against the District with the State Employment Relations Board. Districts should contact legal counsel before proceeding with any meeting which is attended by an employee’s non-union attorney.  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Decision on State Board of Education Resolution on Transgender Protections Delayed

Decision on State Board of Education Resolution on Transgender Protections Delayed

by | Nov 8, 2022 | General

 A “Resolution to Support Parents, Schools, and Districts in Rejecting Harmful, Coercive, and Burdensome Gender Identity Policies” was proposed at the September meeting of the State Board of Education. It was placed on the State Board agenda for its Oct. 11th and 12th meeting dates.

This resolution declares the board’s “unequivocal opposition to the proposed regulatory changes released by the U.S. Department of Education on June 23, 2022.” Specifically, the proposed changes would prohibit schools that receive federal funds from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity. The resolution opposes these changes and declares support for a lawsuit seeking to invalidate rules concerning the continued receipt of federal nutritional assistance adopted by the Department of Agriculture, which was joined by the Ohio Attorney General and 21 other state attorneys general.

The resolution directs the Superintendent of Public Instruction to mail a copy of the resolution to every public school district as well as elementary and secondary schools and preschools receiving federal funds, with a cover letter from the Ohio Department of Education stating the agency opposes Title IX regulatory changes, considers the United States Department of Education guidance documents without legal force and nonbinding, and urges districts not to amend policies and procedures based on USDOE guidance documents.

The final paragraph declares that the State Board rejects harmful, coercive and burdensome gender identity policies, procedures and regulations.

This resolution garnered a lot of state and national attention. The State Board heard four hours of public testimony before deliberating on the resolution. In the end, the State Board voted 12-7 to send the resolution to an executive committee for further consideration.

What this means for your district? The resolution was not passed so the State Board’s action in October to send the resolution to an executive committee for further consideration has no impact on your school district. If passed, the resolution as written would not be binding on local school districts. In the event the resolution passes, school districts should consult with legal counsel before taking any action in accordance with the resolution because doing so may subject your district to liability for failing to comply with federal law.

 

 

 

 

 

 

 

 

 

 

The New Payment in Lieu of Transportation Process

The New Payment in Lieu of Transportation Process

by | Nov 8, 2021 | General

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 hreichle@ennisbritton.com. Templates are included at no additional cost to all registered participants.