On June 6, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent the Office for Civil Rights (OCR) Regional Directors a memorandum outlining how to evaluate and investigate complaints involving students who identify as transgender. Under the Obama Administration, the Department of Education and Department of Justice issued a joint Dear Colleague Letter which provided specific information regarding Title IX recipients’ obligations and examples of how transgender students’ complaints of sex discrimination should be evaluated. On February 22, 2017, the Department of Education withdrew the 2016 Dear Colleague Letter, and now Jackson’s memorandum serves as guidance. Continue Reading OCR Issues New Guidance Seeking to Address Transgender Student Complaints
This morning, the Supreme Court of the United States issued an opinion in favor of Trinity Lutheran Church in Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court considered whether excluding churches from an otherwise neutral and secular aid program administered by a state agency violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution. The Court held a Missouri program funding safety material for playgrounds at public and on non-secular private institutions but not religious ones violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. Continue Reading Update: Supreme Court Issues Decision in Favor of Trinity Lutheran Church
In Chicago Tribune v. The College of DuPage and The College of DuPage Foundation, the Appellate Court of Illinois, Second District issued a unanimous decision ordering a public college’s fundraising organization to release records in its possession pursuant to a state Freedom of Information Act (“FOIA,” a.k.a. “sunshine law”) request. The Court in this case held that the College’s separately incorporated foundation conducts government business on its behalf and therefore is subject to the Illinois FOIA laws. Continue Reading Illinois FOIA Coming In Line with Other States
In Salazar v. South Antonio Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that an educational institution can be liable under Title IX for sexual misconduct committed by its employees only when an employee with power to correct the misconduct—other than the wrongdoer himself—is aware of the misconduct and is deliberately indifferent to it. Although the student plaintiff in the case argued an institution could be liable based on a principal’s deliberate indifference to his own misconduct, the court rejected this result as inconsistent with Title IX. The court held: “We discern no congressional intent in Title IX to provide a private cause of action for damages when the only employee or representative of [an institution] who had knowledge of the [misconduct] was the offender.” The court’s ruling ensures that an educational institution—including a college or university—will not be liable under Title IX someone other than the wrongdoer at the institution is aware of misconduct and the institution has a fair opportunity to respond to it, but nonetheless remains deliberately indifferent to it.
The facts of Salazar are tragic.
On June 8, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, sent a memorandum to the U.S. Department of Education’s Office for Civil Rights regional directors, outlining immediate changes to the investigative practices to be used when investigating alleged violations of civil rights by public school districts in the United States. The memorandum applies to pending complaints and newly filed complaints, but does not apply to complaints previously resolved by OCR. Continue Reading Change is Upon Us: Trump Administration’s OCR Issues Memorandum Regarding Changes to Investigation Practices
The extension of civil rights protections to transgender and gender non-conforming individuals is rapidly evolving. These issues are playing out in schools across the country, and a recent Seventh Circuit decision seems to suggest that transgender students will be afforded Title IX and Fourteenth Amendment protections.
In Whitaker v. Kenosha Unified School Dist. No. 1., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017) the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex. Continue Reading 7th Circuit Orders School District to Allow Transgender Student Access to Restroom that Corresponds with Student’s Gender Identity, Not Biological Sex
Schools may have fewer choices in purchasing cheerleading uniforms in the future. Varsity Brands, Inc. (“Varsity”) and Star Athletica, LLC (“Star”) have been battling over the design of cheerleading uniforms and whether the designs of the uniforms are protectable under the Copyright Act. For background information about the case, please view my previous blog post.
On March 22, 2017, the Supreme Court ruled in Star Athletica, LLC v. Varsity Brands, Inc. (Case No. 15-866) that Varsity’s designs might be eligible for trade secret protections. The Court found that decorative elements of cheerleading uniforms could be protected by copyright law if they “can be perceived as a two- or three-dimensional work of art separate from the useful article.” Continue Reading Supreme Court Finds Stripes and Zigzags Eligible for Copyright Protection
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
It has been over one month since Secretary of Education Betsy DeVos was confirmed by the Senate. Secretary DeVos and the Trump Administration have already had a lot of impact on schools during the past month in office, including withdrawing Obama-Era Transgender Guidance and providing guidance on consolidated state plans related to the Every Student Succeeds Act.
However, one item on Secretary DeVos’ agenda that she has not accomplished—identifying a nominee for the important position of Assistant Secretary of Education for Civil Rights. This person ultimately would head the U.S. Department of Education’s Office for Civil Rights (OCR), including its twelve offices nationwide. Continue Reading Playing the Waiting Game: Trump Administration Has Yet to Nominate an Assistant Secretary for Civil Rights
Secretary of Education Betsy DeVos recently provided some clarifications on the implementation of the Every Student Succeeds Act (ESSA) and released an updated template for the consolidated state plans. The hope, Secretary DeVos said, is that the updated template “ensures greater flexibility for state and local education leaders to do what they know is best for children, while also maintaining important protections for economically disadvantaged students, students with disabilities, and English learners.” Continue Reading ESSA Accountability Regulations: Where Do We Stand?