The outbreak of the novel coronavirus (COVID-19) has presented unprecedented challenges for public and private educational institutions across the country. As schools evaluate how to move forward, Husch Blackwell and our entire Education team is continually monitoring and responding to federal and state guidance on this issue. We have various resources ready to assist you immediately.  We discuss those resources below and assure you that we will keep them updated as new guidance is issued as the situation evolves.

Executive Action

In response to the extraordinary public health threat posed by COVID-19, President Donald J. Trump declared a national emergency on March 13, 2020. Continue Reading Federal COVID-19 Resources for Education Institutions

Title VI Obligations

School districts have an obligation under Title VI not to discriminate on the basis of race, color or national origin. They cannot intentionally discriminate – that is, for example, treat African-American students differently than white students on the basis of race – or engage in practices that have a disparate impact on students of a certain race without having a substantial legitimate justification necessary to its educational mission.

In addition, school districts also have an obligation to address student-on-student harassment or discrimination.  Specifically, they must prevent or address any peer-to-peer racial harassment that is sufficiently serious as to create a hostile environment, or, in other words, harassment that denies or limits a student’s ability to participate in or benefit from school. A district can be liable for intentional discrimination under Title VI when it is deliberately indifferent to such peer-to-peer harassment.

Office for Civil Rights

 The U.S. Department of Education’s Office for Civil Rights (“OCR”) has the authority to investigate claims of racial discrimination and harassment under Title VI, but it is not necessary for students to go through OCR prior to filing a lawsuit. As of August 30, 2019, OCR had more than 1,400 open Title VI investigations – 285 of these were related to alleged racial harassment

Unlike with OCR investigations, there is no central database compiling all the lawsuits filed in courts throughout the country alleging Title VI violations by school districts, but in recent years, there appears to be a trend of some students foregoing OCR complaints and filing claims of race-based harassment and bullying directly in federal court. We discuss one current example below.

T.B. et al. v. Independent School District 112

 In September, six current and former African-American students of a suburban Minnesota school district and their parents filed a nearly 50-page federal lawsuit against the District, alleging pervasive race discrimination. African-American students make up only 3.3% of the student population in the District, and there are very few district staff who are African-American, including no teachers and, until recently, no administrators. Plaintiffs are requesting both injunctive relief – meaning, that the court or jury find that the District violated the law and require the District to come into compliance – and monetary damages.

 The complaint alleges that white students in the District wore blackface on multiple occasions, including once at a high school football game and another time in a photograph that was later printed in the yearbook. The students also allege they were subject to physical assaults, verbal slurs, and a death threat from other students on the basis of their race. Furthermore, the students state that the District treated them differently than white students – including, but not limited to, by disciplining African-American students at higher rates than their white peers. The students allege that four of them left the District due to “rampant racism” and the District’s purported failure to address this racism.

The lawsuit arises under the Equal Protection Clause of the Fourteenth Amendment of the US Constitution, Title VI of the Civil Rights Act of 1964, and the Minnesota Human Rights Act. The students purport that the alleged harassment, discrimination, and disparate treatment on the basis of race has deprived them of equal access to the educational environment. Specifically, the District has been accused of failing to appropriately investigate and respond to reports of harassment and discrimination, failing to enforce its anti-discrimination policies, and failing to train staff on recognizing, addressing and preventing discrimination and harassment.  The complaint includes some description of steps the District has taken, or has stated it intends to take, in response to various incidents, but the students’ position is that no “meaningful action” has been taken to combat the racism, discrimination, and harassment.

In its Answer, Independent School District 112 denied any violation of Title VI, the Minnesota Human Rights Act, or the Constitution. The District alleged that it annually trains staff on responding to discrimination, harassment and violence, alleged that it has taken action to address more than half of the issues presented in an April 2019 petition from a community group (“Residents Organizing Against Racism”), and denied that there was any systemic racism in the District. The District also raises affirmative defenses in its answer, including but not limited to requesting that the students’ claims should be severed from each other and stating that all actions the District took with respect to the students were supported by legitimate, non-discriminatory reasons.

The T.B. v. ISD 112 case is currently ongoing, and the parties were ordered to meet for a settlement conference late last week. Most federal litigation is resolved prior to trial, whether at the summary judgment stage (where the judge determines the merits of the case, or the merits of discrete issues in the case, based on a lack of genuine dispute about the material facts in the case) or through settlement. However, some cases – including some Title VI cases involving peer-on-peer harassment or bullying – are resolved through jury trials. In 2012, for example, a federal court of appeals upheld the one million dollar judgment awarded to a New York student for a school district’s deliberate indifference to racial harassment that included slurs, threats, and physical attacks.

What this Means for You

When a school district knows – or reasonably should know – that racial harassment is occurring, it should take immediate and appropriate steps to investigate and respond to the harassment. The district’s action must be reasonably calculated to remedy the hostile environment and prevent the harassment from reoccurring. While these steps are important after an allegation of harassment is raised, it is equally important to maintain and enforce policies and procedures that communicate to your school’s community the importance of reporting and not tolerating any type of harassment, including race-based bullying. Ensuring that school personnel are trained in how to identify and report harassment and how to properly investigate and mitigate its effects is crucial to maintaining a safe environment for all students.

A few weeks ago, the United States District Court of Massachusetts issued its long-awaited decision in the lawsuit brought by Students for Fair Admissions, Inc. (“SFFA”) against Harvard University (“Harvard”).  In a 130-page decision, the court found in favor of Harvard, holding that Harvard’s race-conscious admissions process was lawful. Continue Reading Harvard Race-Conscious Admissions Process is Lawful

On September 25, 2019, the U.S. Department of Education, the U.S. Department of Justice, U.S. Department of Homeland Security, and the U.S. Department of Health and Human Services released The Role of Districts in Developing High-Quality School Emergency Operations Plans, which is a guide to emergency operations plans (“EOPs”).  The guide addresses a variety of topics, including the roles and responsibilities of schools, school districts, and community partners regarding school safety, along with prevention and mitigation techniques.  The guide also describes that school districts should coordinate with schools and community partners to make EOPs more collaborative.  The guide details that districts can improve their EOPs by providing planning parameters for use by schools throughout their entire districts and supporting schools as they create EOPs to address and plan for hazards (such as natural disasters, disease outbreaks, or accidents) and threats (human-caused emergencies, such as crime or violence) specific to their school’s needs.  Continue Reading Trump Administration Releases School Safety District Guide

On May 16, 2019, Students for Fair Admissions (SFFA), an anti-affirmative action group, filed yet another lawsuit against the University of Texas at Austin (the University). This is the third such suit SFFA has filed against the University. The new lawsuit alleges the University violates the Equal Rights Amendment of the Texas Constitution by considering race in the admissions process. A similar lawsuit between the parties was dismissed in April due to a lack of standing.

Top Ten Percent Plan

Texas passed a law in 1997 known as the “Top Ten Percent Plan” (TTPP) which requires public state universities to admit all applicants from Texas who rank in the top 10% of their high school graduating class. This law was modified in 2009 for the University to allow for automatic admission of 75% of the incoming freshman class, with the remaining 25% to be chosen based on admissions criteria. Currently, students in the top 6% of their graduating class are eligible for automatic admission at the University in this 75% group. Continue Reading Affirmative Action Again Under Fire in Admissions

With the 2019-2020 school year beginning, school personnel must be mindful of changes in the law and best practices related to student health and safety. Interested in learning more? Join us next Tuesday, August 27, 2019, at 12:00pm central time for a complimentary continuing legal education webinar. Register here.

Vaccinations

One of the issues we will discuss is vaccinations. Every state has law mandating vaccines for students, but every state also has at least one exemption to mandatory vaccines. The majority of recent vaccination cases arise from challenges to the religious, philosophical, or personal belief exemptions. Schools in each state should stay up-to-date on the current vaccination policies and make sure school policies reflect a clear understanding of state and federal law. Once policies are updated, schools should ensure these policies are readily available to all stakeholders and implemented consistently.

Mental Health

Student mental health issues are also on the rise in schools on college campuses across the country. Many courts have said educational institutions have a duty to provide adequate mental health resources and a duty to prevent a foreseeable student suicide. A failure to fulfill this duty can lead to litigation against educational institutions. Our webinar will also discuss statutory requirements for colleges and universities regarding mental health services provided to students.

Alcohol and Other Drugs

There has been an increase of litigation related to student life, particularly involving hazing and alcohol and other drugs (AOD). Schools may be liable for negligence in causing injury to students and other injuries arising because of hazing or initiation rituals related to membership in organized clubs or associations such as student organizations, sports teams, and bands. The webinar will detail best practices, an in-depth look into the Drug Free Schools and Communities Act of 1989, and suggestions for AOD policies.

The U.S. Supreme Court has agreed to decide whether a federal law prohibiting employers from discriminating because of sex also protects LGBTQ individuals.

Background of Pending Cases

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of” that individual’s “race, color, religion, sex, or national origin.” In two consolidated cases—Bostock v. Clayton County and Zarda v. Altitude Express—the Court will decide whether Title VII’s ban on “sex” discrimination also prohibits employment discrimination based on an individual’s sexual orientation. And in a third case—R.G. & G.R. Harris Funeral Homes v. EEOC—the Court will decide whether the sex discrimination ban also prohibits discrimination based on an individual’s status as transgender. All three cases will be argued on October 8, 2019. Continue Reading A Look Ahead: Supreme Court to Review Prohibition of Discrimination Based on Sexual Orientation and Gender Identity

On April 23, 2019, the Supreme Court of the United States heard oral argument in Department of Commerce v. New York, No. 18-966.  The argument focused on three main issues: (1) whether the District Court erred in enjoining the Secretary of the U.S. Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the Secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution. Continue Reading New Developments in Supreme Court 2020 Census Case

The United States Department of Health and Human Services (“HHS”) has made opioid overdoses a priority.  HHS initiatives include educating doctors about being more careful in prescribing painkillers.  The Alabama Department of Education and Department of Public Health took that one step further and recently announced a new educational program designed to reduce deaths caused by opioids.  The new, statewide program will provide Alabama high schools with access to Naloxone, the opioid-overdose reversal drug.  This program is the first in the United States to train school administrators, coaches, and teachers in how to use this life-saving drug.  Prior to this program, only nurses could administer Naloxone in Alabama schools.  The Naloxone supplied to schools under this program, which costs approximately $178 per dose, was paid for by a grant, not taxpayer funds. Continue Reading New Alabama School Program Could Reduce Opioid-Related Deaths

In February 2019, the U.S. Department of Education released new Family Educational Rights and Privacy Act (“FERPA”) guidance about schools’ and school districts’ responsibilities under FERPA relating to disclosures of student information to school resource officers, law enforcement units, and other stakeholders to explain and clarify how FERPA protects student privacy while ensuring the health and safety of all in the school community.  See: https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf.

FERPA permits schools and districts to disclose education records (and the personally identifiable information (“PII”) contained in those records) without consent if the “school officials” have “legitimate educational interests” in the education records.  Each school or school district must include in its annual notification what constitutes a “school official” and what constitutes a “legitimate educational interest.”  Law enforcement who are employees of a school or district, would typically be considered a “school official.”  Law enforcement that are off-duty police officers or school resource officers would typically be considered a “school official” if they fall into four specific categories.  The categories include performing an institutional service or function for which the school or district would  otherwise use employees, are under the “direct control” of the school or district with respect to the use and maintenance of the education records, are subject to FERPA’s use and re-disclosure requirements in 34 CFR § 99.33(a) allowing PII from education records to be used only for the purposes for which the disclosure was made (e.g., to promote school safety and the physical security of students) and limits the re-disclosure of PII from education records, and meets the criteria specified in the school or district’s annual notification of FERPA rights for being school officials with legitimate educational interests in the education records. Continue Reading New FERPA Guidance from the U.S. Department of Education Relating to School Safety