On January 7, 2019, the Supreme Court of the United States denied certiorari in Ferguson-Florissant School District v. Missouri Conference of NAACP. This case involves the Ferguson-Florissant School District (“FFSD”), a St. Louis area school district created after a 1975 desegregation order required the original FFSD to annex two neighboring school districts “to achieve a meaningful desegregation” within one unified district. United States v. Missouri, 515 F.2d 1365, 1366 (8th Cir. 1975) (en banc).
This lawsuit challenged FFSD’s method of electing school board members. The suit alleged that the at-large, popular vote, system, in which people only vote once for a candidate, was racially biased against African-American candidates. This lawsuit was originally filed in 2014, when six of the seven school board members were Caucasian, even though about four-fifths of FFSD’s student population was African-American and approximately fifty percent of its voting age population was African-American.
D.C. Circuit Judge Brett Kavanaugh was nominated on July 9, 2018 to the Supreme Court by President Donald Trump. Should he be confirmed, his appointment could have far reaching effects to educational entities across the country. Kavanaugh is a strong proponent of religious liberty and second amendment rights, and has issued a variety of high-profile opinions.
Within the last couple of weeks, two decisions were issued that relate to transgender students’ use of facilities in public schools. In Grimm v. Gloucester County School Board, on remand from the U.S. Supreme Court and the U. S. Court of Appeals for the Fourth Circuit, a federal district court judge denied the Gloucester County school board’s motion to dismiss the plaintiff’s amended complaint. The plaintiff, a transgender student named Gavin Grimm, alleges the school board’s policy prohibiting his use of the bathroom that corresponds to his gender identity, rather than his biological sex, is unconstitutional. Likewise, in Doe v. Boyertown Area School District, the U.S. Court of Appeals for the Third Circuit unanimously rejected an appeal from the denial of a preliminary injunction seeking to block the school district’s policy allowing students to use sex-segregated facilities corresponding to their gender identity.
The Family Educational Rights and Privacy Act (FERPA) is a federal law that gives parents, students over 18, and postsecondary students the right to access education records, the right to seek to amend those records, and the right to consent to disclosure of personally identifiable information in the records, except as provided by law. The authors of this post recently presented on this topic as part of the webinar series for clients and members of the Council of Great City Schools.
On October 20, 2017, the Office of Special Education and Rehabilitation Services (OSERS) within the U.S. Department of Education rescinded 72 education policy guidance documents. Sixty-three of the documents are from the Office of Special Education Programs (OSEP), which administers the Individuals with Disabilities Education Act (IDEA) and provides guidance to states and local governments on how to provide free and appropriate public education to children with disabilities. The remaining nine documents are from the Rehabilitation Services Administration (RSA), which assists individuals with disabilities in employment, independence, and community integration matters. The OSEP documents concern topics including special education funding, due process procedures, private school placements, and more. By contrast, the RSA documents primarily concern employment issues and centers of independent living for adults with disabilities.
On December 7, 2017, the U.S. Department of Education (ED) released a question-and-answer document on the Supreme Court’s 2017 opinion in Endrew F. v. Douglas County School District, 580 U.S., 137 S.Ct. 988 (2017) (“Endrew”). Endrew addressed the Individuals with Disabilities Education Act (IDEA) clarifying the scope of a free appropriate public education (FAPE). The Supreme Court held that in order for a school to meet its substantive obligation under IDEA, it must offer an individualized education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
In light of shifting federal guidance and heightened awareness of sexual harassment, school districts should be on high alert with respect to their internal Title IX policies, staff, and training. Otherwise, they may face complaints with the Department of Education or litigation surrounding the incidents of alleged sex or gender discrimination, sexual harassment, or interpersonal violence.
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.