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20, 2017, the Office of Special Education and Rehabilitation Services (OSERS) within the U.S. Department of Education rescinded 72 education policy guidance documents.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. Continue Reading Special Education “Clean Up” from ED: Trump Administration Rescinds 72 Special Education Guidance Documents
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. Continue Reading Feeling the Shift in Title IX’s Landscape: Internal Policies and Procedures, OCR Investigations, and Litigation
In yesterday’s unanimous decision in Endrew F. v. Douglas County School District RE-1, the Supreme Court articulated the standard by which federal courts should evaluate challenges to individualized education programs (“IEPs”) for students with disabilities. To pass muster under the Individuals with Disabilities Education Act (“IDEA”), an IEP, according to the Court, must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Op. at 14-15.
The IDEA specifically requires that students with disabilities receive a “free appropriate public education” (“FAPE”), a term that is itself undefined in the statute. The Supreme Court initially faced the interpretation of the FAPE requirement thirty-five years ago in Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176 (1982). In Rowley, the Court made some general observations about the FAPE standard, but confined its ruling to the specific facts of the case, leaving the question of what substantive standard applies to another day. Continue Reading Supreme Court Clarifies Special Education Standards
As we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision. Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue. The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question. To learn more, please visit our Higher Education Legal Insights blog.
On February 22, the Supreme Court of the United States issued its opinion in Fry ex rel. E.F. v. Napoleon Community Schools. Fry addresses the circumstances in which parents must exhaust the administrative remedies found in the Individuals with Disabilities Education Act (IDEA), when their lawsuit purports to assert claims only under other federal discrimination statutes—namely, the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. The Court held, unanimously, that parents must exhaust IDEA’s administrative procedures only when the “substance, or gravamen, of the plaintiff’s complaint” seeks relief for the denial of a Free Appropriate Public Education (FAPE). Continue Reading Supreme Court Clarifies Administrative Exhaustion Requirements Under IDEA
Schools and districts are being inundated with parental questions about how their schools will respond to inquiries or visits from immigration officials. To best answer, schools and districts should plan ahead. These are complicated legal, political and educational questions. We highlight some key issues below. For a fuller discussion of the legal issues in particular, check out the pamphlet that one of us wrote for the National School Boards Association. Husch Blackwell clients and members of the Council of the Great City Schools may also want to participate in our March 23, 2017 webinar on the legal rights of immigrant students. Continue Reading Immigration fears in K-12 schools: Questions to ask when planning to respond to immigration officials
In a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex. To learn more, please visit our Higher Education Legal Insights blog.
Safety pins, confederate flags, pantsuits, red baseball caps. Schools face challenges in balancing, on one hand, teachers’ rights to express themselves through what they wear against, on the other hand, potential school disruption in our post-election environment.
Are there times when public schools may restrict teachers from expressing themselves in the workplace through attire? Without a doubt. Continue Reading 6 questions to ask before putting a pin in teacher expressive attire
On October 18, 2016, a federal magistrate judge in Illinois issued a recommendation that the Federal District Court deny a motion seeking to deny a transgender
student access to the girl’s locker room. The School District’s 2013 policy gave transgender students access to whichever restroom facilities most aligned with their gender identity, but did not extend that access to locker rooms. A transgender student, who identifies as female, filed an administrative complaint alleging Title IX violations with the U.S. Department of Education’s (ED) Office for Civil Rights resulting in a resolution agreement called the “Locker Room Agreement.” This agreement entitled only this particular student to use the girl’s locker room and also included measures for all students to maintain their privacy. Continue Reading Redefining Sex: Illinois Magistrate Makes Recommendation to Protect School’s Balanced Transgender Locker Room Policy
The Supreme Court of the United States somewhat unexpectedly agreed on Oct. 28, 2016, to take on the question of whether Title IX requires public school districts to allow transgender students to use single-sex restrooms corresponding to their gender identity rather than that of their birth sex. The issue has generated widespread controversy between the federal government (which has taken the position that it does) and several states that have taken the opposite view. The Court also will have the opportunity to address a split in the lower federal courts on this issue. In the case that the Court will review, Gloucester County School Board v. G.G., the U.S. Court of Appeals for the Fourth Circuit agreed with the Obama administration that Title IX requires this sort of accommodation for transgender students. In contrast, a federal trial court in Texas disagreed and issued an order purporting to prohibit the Departments of Education and Justice from enforcing their interpretation of Title IX. Because of this level of controversy, the Court’s decision to address this issue is welcome, albeit surprising to some. Many commentators expected the High Court to avoid controversial issues until a ninth justice was confirmed.
The Supreme Court also agreed to take up the related question of whether the Fourth Circuit properly deferred to an informal Department of Education interpretation of Title IX. The Court, however, did not grant petitioners’ request that it review its prior decision that more formal agency interpretations of their own regulations should be granted some deference by the federal courts. This is significant because some justices have previously expressed a desire to revisit that issue. Because of the amount of guidance issued in recent years, that broader issue would have huge implications for public school districts.
The Court’s decision to address the meaning of Title IX in this context should give public school districts, as well as colleges and universities, greater clarity of the requirements of federal law in this area. Of course, many state and local laws, as well as school district policies, already provide additional guidance on this issue.
Gloucester County School Board v. G.G. will likely be one of the most closely watched cases of the Court’s 2016 term, and we will continue to update this blog as the case progresses.