On Friday, September 22, 2017, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) and Q&A on Campus Sexual Misconduct. The DCL withdrew the 2011 DCL on Sexual Violence and the 2014 Q&A on Title IX and Sexual Violence issued by the previous administration. In the DCL, Candice Jackson, Acting Assistant Secretary for Civil Rights stated, “[t]he 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students-both accused students denied fair process and victims denied an adequate resolution of their complaints.” The Acting Assistant Secretary went on to state that the 2011 and 2014 guidance documents imposed regulatory burdens without affording notice and the opportunity for public comments.
President Trump and U.S. Department of Education (ED) Secretary DeVos have consistently emphasized and promoted the idea of “local control” in education. However, what does local control really mean? Power to the states? Power to the local school boards? Until now, many have believed that local control applied to all non-federal government involvement in education. The question continues to loom regarding the power struggle and what to do when the state government is in conflict with school boards and school districts. Continue Reading The Locus of Local Control: What Do Politicians Mean by Local Control in Education?
On Wednesday, July 13, 2017, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit (the “Eighth Circuit”) made a significant decision regarding states’ ability to impose requirements for special education services to students. The Eighth Circuit ruled that although under federal law the Individuals with Disabilities Education Act (IDEA) does guarantee nonpublic school students with disabilities a free appropriate public education (FAPE), states are not prohibited from granting that right to private school students. Continue Reading Decision by Eighth Circuit Panel Clarifies States’ Ability to Impose FAPE Requirements
In Krueger v. Appleton Area School Dist. Bd. of Educ., No. 2015AP231, 2017 WI 70, (Wis. 2017), a parent of a child who attended school in the Appleton Area School District (District) alleged that a school board advisory committee meeting was improperly closed because it was a governmental body subject to Wisconsin’s open meetings law. Reversing the Wisconsin Court of Appeals, the Wisconsin Supreme Court concluded that the committee meeting improperly excluded the public from attending. Continue Reading Curriculum Meetings and Public Concerns Collide in Wisconsin Supreme Court Decision on Open Meetings Law
Legislation passed by the Missouri General Assembly this term will have a significant impact on Missouri schools. First, the General Assembly quickly passed a right-to-work bill that Governor Greitens signed into law less than a month after his inauguration. Second, on June 30, 2017, Governor Greitens signed a bill into law changing the requirements for state employment discrimination claims and providing a statutory basis for whistleblower suits. Continue Reading Missouri Schools Face Changing Employment Laws This Year
On June 6, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent the Office for Civil Rights (OCR) Regional Directors a memorandum outlining how to evaluate and investigate complaints involving students who identify as transgender. Under the Obama Administration, the Department of Education and Department of Justice issued a joint Dear Colleague Letter which provided specific information regarding Title IX recipients’ obligations and examples of how transgender students’ complaints of sex discrimination should be evaluated. On February 22, 2017, the Department of Education withdrew the 2016 Dear Colleague Letter, and now Jackson’s memorandum serves as guidance. Continue Reading OCR Issues New Guidance Seeking to Address Transgender Student Complaints
This morning, the Supreme Court of the United States issued an opinion in favor of Trinity Lutheran Church in Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court considered whether excluding churches from an otherwise neutral and secular aid program administered by a state agency violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution. The Court held a Missouri program funding safety material for playgrounds at public and on non-secular private institutions but not religious ones violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. Continue Reading Update: Supreme Court Issues Decision in Favor of Trinity Lutheran Church
In Chicago Tribune v. The College of DuPage and The College of DuPage Foundation, the Appellate Court of Illinois, Second District issued a unanimous decision ordering a public college’s fundraising organization to release records in its possession pursuant to a state Freedom of Information Act (“FOIA,” a.k.a. “sunshine law”) request. The Court in this case held that the College’s separately incorporated foundation conducts government business on its behalf and therefore is subject to the Illinois FOIA laws. Continue Reading Illinois FOIA Coming In Line with Other States
In Salazar v. South Antonio Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that an educational institution can be liable under Title IX for sexual misconduct committed by its employees only when an employee with power to correct the misconduct—other than the wrongdoer himself—is aware of the misconduct and is deliberately indifferent to it. Although the student plaintiff in the case argued an institution could be liable based on a principal’s deliberate indifference to his own misconduct, the court rejected this result as inconsistent with Title IX. The court held: “We discern no congressional intent in Title IX to provide a private cause of action for damages when the only employee or representative of [an institution] who had knowledge of the [misconduct] was the offender.” The court’s ruling ensures that an educational institution—including a college or university—will not be liable under Title IX someone other than the wrongdoer at the institution is aware of misconduct and the institution has a fair opportunity to respond to it, but nonetheless remains deliberately indifferent to it.
The facts of Salazar are tragic.
On June 8, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, sent a memorandum to the U.S. Department of Education’s Office for Civil Rights regional directors, outlining immediate changes to the investigative practices to be used when investigating alleged violations of civil rights by public school districts in the United States. The memorandum applies to pending complaints and newly filed complaints, but does not apply to complaints previously resolved by OCR. Continue Reading Change is Upon Us: Trump Administration’s OCR Issues Memorandum Regarding Changes to Investigation Practices