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

On February 26, 2019, the Supreme Court of Missouri issued an en banc opinion in R.M.A. v. Blue Springs Sch. Dist., No. SC96683.  The court held that a transgender student who was barred from using the boys’ locker room had stated a valid cause of action for sex discrimination in violation of the Missouri Human Rights Act (“MHRA”).

R.M.A., a female to male transgender student, attended school in Blue Springs R-IV School District (“BSSD”).  R.M.A. filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) in October 2014 alleging discrimination in a public accommodation based on sex.  R.M.A. alleged that he lives as a male, has changed his legal name to a traditionally male name, and presents himself as male to all faculty, staff, and other students in the School District.  R.M.A. alleged that BBSD had permitted him to participate in boys’ physical education class, boys’ football, and boys’ track, but that he had not been permitted to use the boys’ locker room or bathroom based on his sex and gender identity. Continue Reading Supreme Court of Missouri Opines on Sex Discrimination under the Missouri Human Rights Act

Following the school shootings at Marjory Stoneman and Santa Fe High Schools, President Trump established an executive Commission on School Safety. The Commission’s members were Betsy DeVos, U.S. Secretary of Education, Kirstjen Nelson, Secretary of Homeland Security, Alex Azar II, Secretary of Health and Human Services, and Matthew Whitaker, Acting Attorney General. The Commission was charged with producing policy recommendations in an effort to help prevent future tragedies. After conducting field visits, listening sessions, and meeting with state and local leaders, the Commission issued a report calling for, among other things, “more threads of love, empathy, and connection” in our country’s “moral fabric.”

The report covers a host of school safety topics, including proposed best practices for improving school climate, increasing access to school-based mental health services, coordinating with the media in reporting safety breaches, and school discipline. The report also recommends improving and increasing school safety training, including modules on active shooter preparedness. Continue Reading An Overview of the Key Findings from the Federal School Safety Commission Report