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 Giselle Spencer | Jul 1, 2016 | Student Education and Discipline
A U.S. District Court in Massachusetts has allowed a legal claim against city and school administrators for peer-on-peer sexual harassment under Title IX. Several of the plaintiff’s other claims were dismissed, but the Title IX harassment claim was allowed to proceed. The case will be pursued in the U.S. District Court.
Title IX of the Education Amendments of 1972 prohibits sex discrimination and harassment in education:
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 Harrington v. City of Attleboro, student Noelle Harrington alleges years of sexual harassment from school bullies and, along with her mother, is suing the school district. Harrington attended Brennan Middle School in Attleboro from 2008 to 2010, where she first experienced harassment from a student who repeatedly called Noelle offensive names related to her sex and to sexual stereotyping. Two other students joined in the name calling as well. The bullying escalated to a physical assault, resulting in bruising, a sprained ankle, and a fractured wrist. The Harringtons had notified school principals, assistant principals, and the school psychologist and were told that the problems would be dealt with. They also contacted the Attleboro Police Department, who said that this was a school issue and did not intervene.
The name calling and comments continued when Noelle went to Attleboro High School in 2010. As a matter of school policy, documentation of the boys’ conduct was not transferred from the middle school. Noelle was placed in classrooms with the same boys, and the harassment continued by them and other students as well. In January 2012 the school prepared a “Safety Plan” for Noelle, giving her the right to report harassment to administrators, to access the nurse “in times of stress,” and to leave class early in order to avoid the students in the hallways. In February 2012, the student who had physically assaulted Noelle in middle school followed her from the library to her home. When her mother told a school administrator, she was told that the school would not address this conduct because it occurred outside of school and off the school property. Also that month students shined a laser pointer into Noelle’s eyes. She went to the nurse, who contacted Noelle’s mother. The Harringtons again contacted the police department and were told that the school police officer would have to handle the complaint. The Harringtons allege that the school police officer failed to respond to their complaint. The Harringtons then informed school administrators that they wanted to transfer Noelle to another school but allege that the school did not assist in placing Noelle elsewhere. When Noelle posted on Facebook about suicide, her mother consulted a crisis team, who instructed Noelle not to return to the high school. Noelle was registered at a treatment center for psychotherapeutic care. Her mother withdrew her from school on March 1, 2012.
Harrington v. City of Attleboro is a Title IX claim on the basis of sexual harassment – which includes sexual stereotyping – in education. To state a claim under Title IX for student-on-student sexual harassment, a plaintiff must show the following elements:
- He or she was subject to “severe, pervasive, and objectively offensive” sexual harassment by a peer.
- The harassment caused the plaintiff to be deprived of educational opportunities or benefits.
- The funding recipient (the school) knew of the harassment.
- The harassment took place in school programming or activities.
- The school was deliberately indifferent to the harassment such that the response, or lack of a response, was unreasonable given the nature of the known circumstances.
In allowing this claim to proceed, the US District Court acknowledges that the Harringtons have a plausible Title IX claim. Allegations for sex-based discrimination must show that the harassment was because of the person’s sex. The court noted that the students’ conduct was severe, not just “tinged with offensive sexual connotations,” and appears to be based on sexual stereotyping, such as appearance, mannerisms, and sexual preference.
The standard of deliberate indifference is stringent and requires more than allegations that a school should have done more. However, the First Circuit has suggested that a school’s failure to take additional measures after its initial measures were ineffective might constitute deliberate indifference. In Harrington v. City of Attleboro, the district court allowed this Title IX claim because the Harringtons’ allegations suggest that the school “failed to take additional reasonable measures after it learned that its initial remedies were ineffective.”
What This Means to Your District
The standard of deliberate indifference is not simply a standard of doing nothing to prevent discrimination or harassment. A school may take action yet the action not be found reasonable given the known circumstances. As the known circumstances increase and intensify, the action the school takes should increase and intensify accordingly. Ennis Britton attorneys are available for consultation with Title IX issues as with other school-related issues.
Harrington v. City of Attleboro, — F.Supp.3d –, (D. Mass. 2016) 2016 WL 1065804
by Jeremy Neff | Jun 27, 2016 | Legislation, Student Education and Discipline
Efforts to reform truancy policy in Ohio have resulted in House Bill 410, which would eliminate suspension or expulsion of students as a punishment for excessive absence. The bill, which was passed in the House and now awaits action in the Senate Education Committee, would take effect in the 2017–2018 school year. HB 410 represents a shift away from zero-tolerance approaches to unexcused absences by removing “excessive truancy” from district policy regarding violent, disruptive, or inappropriate behavior.
Boards would need to adopt or amend existing policy to address student absences. Schools would be required to set up absence intervention teams – a district or school administrator, a teacher, and the parent or guardian of the child – aimed at finding solutions to get students to class via “absence intervention plans.” The bill suggests that the team collaborate with school psychologists, counselors and social workers, as well as public agencies and nonprofit organizations, which can provide additional assistance.
Schools would be required to report to the Department of Education any cases of habitual truancy, which has been redefined by the bill in terms of hours missed instead of days missed. The student would be assigned an intervention team, which must also be reported to the Department of Education. Though the bill is aimed at avoiding court interactions, juvenile court may issue an order to require that a child attend a certain number of consecutive hours unless the student has a legitimate excused absence.
For schools, a comparison for the absence intervention plan and the new protocol for truants is perhaps the implementation of a section 504 plan. Likely, the intervention team will conduct an equivalent to a functional behavioral analysis and come up with modifications in accordance. In contrast to IEPs, which are detailed, goal oriented, and have numerous methods for enforcement by the ODE, the solutions of the intervention team are not nearly as rigidly enforced by the language of the bill.
Should a child fail to complete the absence intervention plan laid out by the intervention team, the school can file a complaint to adjudicate the student as unruly. At that point, this complaint would be held in abeyance until the child either completes or fails to comply with a court diversion program. A child who fails to complete the program could be adjudicated as a delinquent child because of chronic truancy. The consequences for the parent or guardian of a chronic truant include a minor misdemeanor charge if the court finds that their actions in any way contributed to the behavior. In addition, they must pay a surety bond of $500.
The practical implications of these changes would likely place a burden on schools. Further constraints would be imposed on their staffing, who must participate in the intervention teams at additional expense. School budgets would be forced to accommodate in-school suspensions in place of expulsions or out-of-school suspension, which would require an extra classroom and teacher. However, the bill provides for no funding to implement these changes. The new approach to truancy will undoubtedly present a challenge to districts but aims to be a more effective means of addressing student absences.
by Megan Bair | Feb 3, 2016 | Board Policy & Representation, Student Education and Discipline
The Thomas Moore Law Center, on behalf of John and Melissa Wood and their minor daughter, filed suit against the Charles County Public School District Board of Education and the High School Principal and Vice-Principal alleging that the La Plata High School “promoted Islam” by implementing a pro-Muslim lesson plan in its World History class. The Woods claim that the school concealed that it promoted Islam by leaving the topic out of a course syllabus and that students were forced to use a separate textbook for the segment on Islam but were not permitted to take it home. To that end, the Woods allege that their daughter was forced to profess and to write out the Shahada, the Islamic creed, in worksheets and quizzes.
By way of background, the lawsuit alleges that after the Woods learned of the Islamic subject matter being taught, Mr. Woods immediately contacted the school to voice his objections and to obtain an alternative assignment for his daughter. He maintains that the school ultimately refused to allow his daughter to “opt-out” of the assignments and subsequently enforced its “No Trespass” policy on him so that he was no longer permitted to enter onto school premises.
In a January statement, President and Chief Counsel of the Thomas More Law Center Richard Thompson said the school “forced Wood’s daughter to disparage her Christian faith by reciting the Shahada, and acknowledging Mohammed as her spiritual leader.”
“The Woods believe that it is a sin to profess commitment in word or writing to any god other than the Christian God,” the Thomas Moore Society says on its website. “Thus, they object to their daughter being forced to deny the Christian God and to her high school promoting Islam over other religions.”
The Woods seek a court declaration that the Defendants violated their constitutional and statutory rights, a temporary and permanent injunction barring Defendants from endorsing Islam or favoring Islam over Christianity and other religions, and from enforcing the no trespassing order issued against Mr. Wood.
by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
by Jeremy Neff | Dec 22, 2014 | General, Student Education and Discipline
The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).
