The FCC recently provided additional guidance about the kinds of school-initiated text messages and automated calls that are exempt from liability under the federal Telephone Consumer Protection Act (TCPA). Below is a brief background of relevant portions of the TCPA, a summary of new guidance from the FCC, and a few open issues to consider.

The TCPA

The TCPA was passed in 1991 to curb the rampant and harassing telemarketing practices of the time, and established relatively high-dollar civil liability – $500 to $1500 per violation – as its enforcement mechanism. In relevant part, the TCPA makes it unlawful to use “an automatic telephone dialing system” to call (or text) any number assigned to a cellular telephone service, and allows the recipient to sue the caller if he/she received such a call. There are two statutory exceptions to liability under the TCPA:

  • where the recipient of the call provided his or her prior express consent to be called, or
  • where the call was placed for an “emergency purpose,” defined as “any situation affecting the health and safety of consumers.”

47 U.S.C. § 227 (b)(1); 47 C.F.R. § 64.1200(f)(4).

Yesterday, the White House released a Fact Sheet: Ensuring Safe and Supportive Schools for All Students. The White House Task Force to Protect Students from Sexual Assault in partnership with the U.S. Department of Education (the Department) announced additional materials to help school districts address sexual assault misconduct in elementary and secondary schools. These resources demonstrate the continued commitment of the Department and White House to addressing the issue of sexual assault on campus. It also underscores that the Title IX requirements to prevent and address sexual misconduct are not just an issue for colleges and universities, but also for public school districts as well.

The U.S. Department of Education (the “Department”) yesterday published proposed regulations in the Federal Register concerning the supplement-not-supplant requirement of Title I of the Every Student Succeeds Act (ESSA). This is the first time that the Title I supplement-not-supplant requirement contains an express legislative directive regarding how a local education agency (LEA) must demonstrate compliance. For this reason, the Department proposed the regulations to provide clarity about how LEAs can demonstrate that the distribution of State and local funds satisfies the statutory test. Based on the Department’s Fact Sheet, the proposed regulation would mean up to $2 billion annually in additional funding for the highest need schools and students.

On July 26, 2016, the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter and Resource Guide on Students with ADHD. The Dear Colleague Letter and Resource Guide confirm that, under Section 504 of the Rehabilitation Act of 1973, school districts are required to provide equal educational opportunities to students with attention deficit disorder (“ADD”) and students with attention deficient hyperactivity disorder (“ADHD”).

Labor unions are still able to collect “agency fees” (at least for now) following a 4-4 split decision by the U.S. Supreme Court. In Friedrichs v. The California Teachers Association, lead plaintiff and public school teacher Rebecca Friedrichs argued that a California state law violates the First Amendment right to free speech and association by compelling financial support for an organization with which she disagrees. This argument is premised on the idea that agency fees laws require public sector non-union member teachers – as a condition of their employment – to pay agency fees to the union that goes to support the union’s collective bargaining efforts; and because public-sector bargaining is inherently a political activity, non-union members are effectively being forced to finance political activity that they do not support. Friedrichs argued that non-union member public sector teachers should not be forced to pay hundreds of dollars each year to unions to which they did not belong, and in some instances did not agree with or support. Defendants – and unions who stood to lose significant funding – argued that without being forced to pay agency fees for collective bargaining work, non-union members would get the benefits of collective bargaining from the union (e.g. increased compensation, better benefits, etc.) without paying any union fees for these benefits.

Gavin Grimm, a transgender male high school student in Virginia, convinced the Fourth Circuit Court of Appeals that he must be allowed to use the men’s bathroom at school; however, the Supreme Court recently issued a stay, which is to say to Grimm, “Let’s wait a minute; is this really required by federal law?”

As schools attempt to navigate the varied, and often conflicting, views and authorities regarding transgender students’ use of bathrooms and locker rooms, one thing all sides can agree on is that clear guidance from SCOTUS would help schools know where they stand. That guidance may be coming next term. This is particularly true now that a federal district court in Texas has disagreed with the Fourth Circuit.

As the 2016-2017 school year begins, school administrators across the country brace themselves for the host of issues that every new school year brings. In recent years, a new issue has been added to this list of school district worries: guns on campus.

Spurred by tragedies like Columbine, Newtown and other school shootings, gun legislation has captured news headlines and divided legislatures. In contrast to the expansive federal Gun Free Schools legislation passed in the 1990s, more states are now debating—and sometimes passing—laws that allow “open carry” in certain public places or that also expand the areas in which permit holders may carry concealed weapons.

The U.S. Department of Education recently released guidance to school districts regarding new provisions of the Every Student Succeeds Act (“ESSA” or the “Act”) that address the support of homeless students. The guidance provides a summary of the required protections for homeless children and recommendations for school districts. The Education for Homeless Children and Youth program was originally authorized in 1987 and recently re-authorized as part of ESSA. The new provisions in the Act were prompted in part by growth in the number of homeless children enrolled in U.S. public schools. During the 2013-2014 academic year, there were more than 1.3 million homeless children enrolled. States and school districts must begin implementing these requirements by October 1, 2016.