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Theresa Mullineaux

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Theresa focuses her practice on commercial litigation and represents clients in a wide variety of industries, including education, financial services, healthcare, and manufacturing. She has experience in all stages of litigation, including fact investigations, initial pleadings, dispositive motions, motions in limine, discovery, depositions, and trial strategy. Theresa is also a member of the St. Louis Cortex team, helping startup companies navigate the legal environment.

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On May 19, 2020, the CDC released considerations for schools to supplement any state or local regulations with which schools must comply.  In general, the more humans interact, and the longer the interaction, the higher the risk of COVID-19 spread.  While the lowest risk is students and teachers participating in virtual-only classes, activities, and events, there are precautions schools may follow to help minimize risk to the school community.  Those precautions include personal prevention practices like handwashing, developing new policies, modifying school layouts, and preparing for when someone becomes ill.

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. 

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.

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.

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.

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.

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.