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Preparing to Walk

by Bobby Padgett

As we approach the coming graduation season, we offer this Legal Blast to remind districts that students do not possess a fundamental constitutional right to participate in graduation ceremonies.  While such claims are rare, when they do arise they can cause significant difficulties for a school district because resolving the issue takes a concerted and time-consuming effort due to the timing of graduation ceremonies.

Most often, these claims arise either because a student violates the student code of conduct through their behavior at pre-graduation ceremonies, or they fail to complete all state-mandated requirements to graduate.  With either case, the central inquiry must revolve around the undeniable fact that graduation ceremonies are extra-curricular activities and, as the Texas Supreme Court has repeatedly stated, students do not possess a fundamental right to participate in extra-curricular activities.

This premise that students who do not complete all mandated requirements to graduate do not have a fundamental right to participate in graduation ceremonies was first articulated by the Texas Supreme Court in Spring Branch I.S.D. v. Stamos, 695 S.W. 2d 556 (Tex. 1985), and affirmed in NCAA v. Yeo, 171 S.W.3d 863 (Tex. 2005), where the Court stated:

 “Construing the Texas Constitution’s guarantee of due course of law, we held twenty years ago in Spring Branch I.S.D. v. Stamos, like ‘the overwhelming majority of jurisdictions’ construing other constitutional guarantees of due process, that ‘students do not possess a constitutionally protected interest in their participation in extracurricular activities.’ We have endorsed the rule in Stamos twice since. [The student] nevertheless contends that because of her unique situation as “the most decorated athlete in the history of the Republic of Singapore”, to disqualify her from participating in an intercollegiate swimming competition would deprive her of protected property and liberty interests in her reputation and existing and future financial opportunities in violation of the Texas Constitution. The lower courts agreed, distinguishing this case from Stamos. We conclude that the rule in Stamos applies and therefore reverse the judgment of the court of appeals and render judgment that [the student] take nothing.”

While the range of circumstances can vary widely, a school district can successfully resist a student’s claim that they have a right to participate in graduation ceremonies, so long as the school district’s actions are taken in accordance with school board and school district policies.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding a student’s claim that they have a right to participate in extra-curricular activities, including graduation ceremonies, and the implications it may have for your district.

Exhausting Your Remedies is Exhausting!

by Mike Leasor

In Fry v. Napoleon Cmty. Sch., No. 15-497 (U.S. Feb. 22, 2017), the U.S. Supreme Court, in an 8-0 ruling, held that the exhaustion of the IDEA’s administrative remedies is unnecessary where the gravamen of the plaintiff’s lawsuit is something other than the denial of the IDEA’s core guarantee of FAPE.

E.F. suffers from cerebral palsy and was prescribed a service dog (Wonder) to assist her with everyday tasks. Her school, which provided her with a human aide as part of her Individualized Education Program (IEP) under the IDEA, refused to permit her to bring her service dog to school.

The Frys then began homeschooling E.F. and subsequently filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) under the ADA and §504 of the Rehabilitation Act. Two years later, in May 2012, OCR found that the school’s refusal to permit Wonder to attend school with E.F. was a violation of the ADA. At that time, without accepting the factual or legal conclusions of OCR, the school agreed to permit E.F. to attend school with Wonder starting in the fall 2012.  The Frys then filed suit pursuant to Title II of the ADA and §504, seeking damages for the school’s refusal to accommodate Wonder between the fall of 2009 and the spring of 2012.

The Frys alleged the following particular injuries: denial of equal access to school facilities, denial of the use of Wonder as a service dog, interference with E.F.’s ability to form a bond with Wonder, denial of the opportunity to interact with other students at Ezra Eby Elementary School, and psychological harm caused by the defendants’ refusal to accommodate E.F. as a disabled person.

The district court granted the defendants’ motion to dismiss, finding that the IDEA’s exhaustion requirements applied to the Frys’ claims and dismissed the claims. The court noted that although the Frys did not specifically allege any flaws in E.F.’s IEP, if she were permitted to attend school with Wonder, that document would almost certainly have to be modified in order to articulate the policies and practices that would apply to the dog. Therefore, the Frys’ request for permission for E.F. to attend school with Wonder “would be best dealt with through the administrative process,” and exhaustion was required. Because the Frys had not exhausted IDEA administrative remedies, the district court dismissed their suit. The Frys timely appealed.

A U.S. Court of Appeals for the Sixth Circuit panel, in a 2-1 decision, affirmed the lower court’s decision dismissing the §504 and ADA claims. The panel’s majority concluded that the IDEA’s exhaustion requirement applied to the Frys’ claims. It stated that “the nature of the Frys’ claims required them to exhaust IDEA procedures before filing suit under the ADA and the Rehabilitation Act.” Crucial to the majority’s conclusion that exhaustion of administrative remedies was required, was its determination “in effect that E.F.’s school’s decision regarding whether her service animal would be permitted at school denied her a free appropriate public education.”  Again, the Frys timely appealed.

 The Supreme Court in its decision advanced two positions: (1) To bring a suit under IDEA, the plaintiff must seek relief for the denial of FAPE because that is the only relief available under IDEA; and (2) “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.”

According to the opinion, a determination of whether the exhaustion requirement applies must go beyond the surface of the complaint to examine the substance. The Court pointed to two “clues” to discovering whether the gravamen of a complaint concerns denial of FAPE or, instead, focuses on disability-based discrimination addressable under Title II of the ADA or §504:  First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance?

The Court concluded that if the answer to both is yes, then it is unlikely that the complaint concerns FAPE. However, if the answer to both is no, it is probable that the complaint does concern FAPE.

The Court stated further that another sign that the gravamen of a complaint involves the denial of FAPE is when the history of the proceedings reveal that the “plaintiff … previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream.” She noted that “prior pursuit of the IDEA’s administrative remedies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

Turning to the Frys’ complaint, the Court pointed out that it might not require exhaustion, but that there was important information missing that required remanding the issue to the Sixth Circuit. It pointed out that the complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. The Court also noted that the complaint “does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs.”  It concluded that nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. It conjectured that “the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder.”  Thus, the Supreme Court determined that administrative remedies did not need to be exhausted based on the information at hand, but then remanded the case back to the Circuit Court to determine if the Frys had ever pursued administrative remedies in the first place.

Although confusing, this case is instructive as it gives school districts guidance as to when a “failure to exhaust administrative remedies” argument might be a waste of energy and resources.  Unfortunately, the decision could also be read as providing a roadmap on how to package a claim to avoid an otherwise suitable administrative remedy.  This could have the effect of dramatically increasing the number of cases that end up being litigated in federal courts, as opposed to the (relatively) more efficient due process hearings system.  If you or your staff have additional questions on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

U.S. Supreme Court Rejects “More than De Minimis” Standard

by Dean Micknal

The U.S. Supreme Court issued an opinion today that expressly rejects “merely more than de minimis” as the standard for measuring whether an IEP is reasonably calculated to provide FAPE under the IDEA.  Instead, the Court has held that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

In Endrew F. v. Douglas County School District, the Court overturned the 10th Circuit’s interpretations of IDEA and the Supreme Court’s previous ruling in Board of Education of Hendrick Hudson School District, Westchester City v. Rowley (“Rowley”) as only requiring an IEP to be reasonably calculated to enable a student to make some progress, as long as the progress is more than de minimis.  The leading case in the 5th Circuit, Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. applied a similar interpretation, explaining that the educational benefit to which the [IDEA] refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be “likely to produce progress, not regression or trivial educational advancement.”

While the opinion makes it clear that the “more than de minimis” standard is unacceptable, the new standard is anything but definite.  This should not be viewed as an oversight, though.  In fact, the Court expressly refused to establish a bright-line rule on what “appropriate” progress means, explaining that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”

The frustrating reality of this ruling is that it leaves districts (and their legal counsel) in the position of knowing what FAPE isn’t, but not knowing what FAPE is.  That determination is going to have to be developed through litigation, a fact that the Court seemingly acknowledged when it cautioned future courts that “[t]his absence of a bright-line rule” should not be mistaken as “an invitation…to substitute their own notions of sound educational policy for those of the school authorities which they review.”

This affirmation that the legal presumption of appropriateness is still standing is one of the two areas in which districts might find some measured solace.  The second is that the Court flatly declined to adopt the standard asserted by the Petitioners that IDEA requires “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.”

So what should districts do in response to the new ruling?  First, take a deep breath. The “more than de minimis” standard may have been the law, but in reality the overwhelming majority of districts have always committed to providing much more than the bare minimum to their special education scholars.  Next, recommit to emphasizing the importance of ensuring that an IEP is truly individualized and based on a student’s Present Level of Academic Achievement and Functional Performance (PLAAFP).  The fact that the new standard is directly tied to “the unique circumstances of the child” means that a well written PLAAFP statement is more crucial now than ever.

Finally, acknowledge that the ruling raises the bar, but stops well short of requiring the district to issue a blank check.  IEP development is a collaborative process and sometimes disagreement is inevitable. The IDEA provides parents with the right to file for a due process hearing in these instances.  When that happens, remember that the Court chose to close this decision with the following message:

The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.  By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.  A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

If you should have any questions or concerns about what the new decision means for your district, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

Virginia Transgender Case Marches On

by Tommy Fisher

On March 28, 2017, the United States Supreme Court will hear arguments in Gloucester County School Board v. G.G., more commonly referred to as the transgender restrooms case.  The primary issue in the case, whether public schools can be required to let transgender students use bathrooms that align with their gender identity, is one of the highest profile cases likely to be heard by a Supreme Court that has only eight sitting members since the death of Justice Antonin Scalia in February 2016.  How the Gloucester case is deciding could have a far reaching impact on public schools across the United States and merits watching closely by districts and their boards.

G.G. is a 17 year old student at Gloucester High.  G.G. was born female but identifies as a male.  He was allowed to use the boys’ restroom at his school for several weeks in 2014.  After some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.  G.G. sued the board, alleging that its policy is discriminatory and violates his civil rights.  The 4th Circuit Court of Appeals agreed with G.G. and ruled the case could go forward.  The appeals court deferred to the position of the Obama administration that Title IX bans sex discrimination in public school, and thus protects the rights of transgender students to use the bathroom that aligns with their gender identity. Shortly after the 4th Circuit’s decision, the U.S. Department of Education issued guidance to schools consistent with the decision.  The Supreme Court issued an order that stays the decision of the 4th Circuit.  As a result, G.G. will not be allowed to use the boys’ bathroom while the decision by the Supreme Court is pending.

Further compounding the transgender bathroom issue is a case being appealed to the 5th Circuit Court of Appeals, State of Texas, et al., v. United States of America, et al.  The district court Judge in the State of Texas case issued a nationwide injunction banning enforcement of an Education Department policy requiring schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.  The State of Texas case is being appealed to the U.S. 5th Circuit Court of Appeals.

So where does all of this leave the transgender bathroom in schools issue?  For now, the nationwide injunction bans the Department of Education from enforcing its policy.  If the 5th Circuit Court of Appeals upholds the injunction, it will remain in place nationwide.  If the Supreme Court deadlocks 4-4 in the G.G. case, which is a possibility given the current makeup of the eight member Court, the decision of a Texas District Court Judge could remain in place as long as the Supreme Court is unable resolve the issue.  Whatever the outcome, the issue certainly should be followed closely by districts as the regulatory and legal landscape on this issue evolves.

If you or your staff require further information or if an issue arises involving a transgender student, the attorneys at Leasor Crass stand ready to assist.

Proper Investigation Matters: Student’s Sexual Abuse Claims Fail

by Bobby Padgett

by Bobby Padgett

A federal district court dismissed all claims filed by McAllen ISD parents alleging that a teacher engaged in sexual contact with their child during a school trip and on the high school campus. In Moreno v. McAllen Independent School District, the parents asserted causes of action under Section 1983, Section 1985, and Title IX, in addition to state law claims of assault and battery, negligence, negligence per se, and intentional infliction of emotional distress.  The district court dismissed the state law claims for failure to state a claim, and granted summary judgment on the federal claims.

Before moving to a discussion regarding the District’s investigation, a brief overview of each claim is as follows:

  • Section 1983 Claims: The Court found the Section 1983 claim was meritless because there was no showing that a state action had deprived the child of federal rights.
  • Fourteenth Amendment Claims: The Court found meritless the claim that the child was to be free from state-caused damage to his bodily integrity noting there was no evidence showing the presence or absence of any District training programs and how they were defective.  Furthermore, there was no evidence that the Board knew of any violations, or received complaints about a District employee and deliberately chose to do nothing.
  • Section 1985 Claim: The Court found the Section 1985 claim for conspiracy meritless based on a determination that a school board and its employees constitute a single entity, and as such cannot be co-conspirators.
  • Title IX Claim: While the court noted that sexual abuse of a student by a teacher of the same sex constituted discrimination under Title IX, the claimant failed to show that a school employee with supervisory authority over the accused employee had actual notice of the abuse.

Regarding the District’s investigation into this matter, the Court found that one teacher in the District had complained about the accused employee’s behavior with male students to a principal, but that the conduct described in the complaints was susceptible to multiple interpretations and would not have given the principal actual notice that the accused employee was sexually harassing or abusing students.

Furthermore, and most important, the Court could not find that the District was deliberately indifferent to the abuse. After the District received the allegations, it swiftly initiated an investigation, notified the McAllen Police Department and Child Protective Services, and placed the accused employee on paid leave.  In sum, because the family had not shown that any supervisor in the District had actual knowledge that the accused employee posed a substantial risk of abusing students and responded with deliberate indifference, the Court granted the District summary judgment and dismissed the claims.

The lesson here is one which should be carefully heeded.  If, at any time, a student makes a claim of any type of harassment against a district employee, that district should immediately begin its investigation to ensure it either proves the allegation false or roots out and remedies the discrimination.

Leasor Crass, P.C. will continue to monitor these issues and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding existing discrimination law and the implications it may have for your district.

Good News. Bad News. AG Releases Opinion Regarding Video Surveillance

by Dean Micknal

by Dean Micknal

The Attorney General has finally responded to TEA’s March 11, 2016 request for an expedited opinion regarding the construction of Texas Education Code section 29.022.  Unfortunately, it is not the response most Districts (or TEA) were wanting.  A copy of the opinion is available here.

Back in March, Commissioner Morath asked the AG four questions:

  1. Whether TEC 29.022(a) could be interpreted to only require video surveillance in one self-contained instructional setting;
  2. Whether TEC 29.022(a) could be interpreted to allow a requestor to limit a request for video surveillance to one or more specific instructional settings;
  3. Whether the term “staff member” as used in TEC 29.022(a) could be construed to mean only a campus employee who is assigned to a self-contained instructional setting subject to surveillance and certain campus supervisors; and
  4. Whether TEC 29.022(b) allows a district to discontinue video surveillance if the circumstances surrounding the request have changed substantially.

The Attorney General emphatically disagreed with the suggested interpretations…stating that “[t]he plain language of the statute does not allow for the reasonable limitation that you suggest, and this office cannot rewrite the statute.”

What does this mean for districts?  Prior to yesterday’s Opinion, there was a sliver of hope that the AG would interpret the statute so as to allow TEA to revise the rules it adopted last month to limit the scope of a request and/or allow for surveillance to be discontinued.  This Opinion would seem to firmly shut that door.  Consequently, with respect to questions 1, 2, and 4, the current Rules will probably remain in effect. Specifically:

  • TAC 103.1301(a) requires cameras to be placed, operated and maintained in self-contained classrooms or other special education settings in accordance with TEC 29.022, which has been interpreted to mean all qualifying self-contained classrooms and other special education settings;
  • TAC 103.1301 does not include any provision allowing a Requestor to limit a request to one or more specific settings; and
  • TAC 103.1301(g)(6) requires campuses to “continue to operate and maintain any video camera…for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).”

However, TEA may end up having to change the definition of “staff member” set out in TAC 103.1301(b)(2).  In the AG’s opinion, TEA “exceeded its rulemaking authority by adopting a definition more restrictive than the plain language of the statute.”  In other words, the AG believes that if the Rules were challenged, a court would likely conclude that the statute allows any staff member to request video surveillance.  That being said, the current, narrower definition of “staff member” remains in force until TAC 103.1301(b)(2) is revised or overturned in court.

Ultimately, this means that any hope for “reasonable limitations” to TEC 29.022 will most likely require action on the part of the Legislature.  As many districts have warned, and the AG explicitly acknowledged, as currently written, the statute “could create significant costs for school districts.”  We now know that relief from those costs won’t be coming from Ken Paxton’s office.  At best, the AG’s explicit admonishment of the authors of SB 507 for believing that “TEA can clarify these concerns through rulemaking” and pointed reference to the Texas Supreme Court’s holding that “reasonableness is not the standard for eschewing plain statutory language” will be received as a call to legislative action.

Leasor Crass, P.C. will continue to monitor this issue and provide guidance as new information becomes available.  In the meantime, please do not hesitate to contact our office should you have questions or concerns regarding the existing law and the implications it may have for your district.

 

Court Tells OCR to Hold It: Legal Update on Transgender Restroom Access

by Christie Hobbs

by Christie Hobbs

On August 21, 2016, the federal court in Wichita Falls issued a nationwide injunction in a lawsuit over federal guidance on transgender student rights in schools.  In the lawsuit, Harrold ISD, the State of Texas, and eight other states sued the federal government to dispute guidance that tells schools to allow transgender students to use restrooms, locker rooms, housing, and overnight accommodations consistent with their gender identity.  The guidance and lawsuit were summarized in a previous post here.

The preliminary injunction prevents the United States Department of Education, the United States Department of Justice, and other federal agencies from:

  • enforcing the guidance against the Plaintiffs and other public schools;
  • initiating or continuing any investigation on the interpretation of sex and gender identity set out in the guidance; and
  • using the guidance in litigation or asserting that the guidance carries weight in any litigation filed after August 21.

The injunction extends nationwide until the court rules on the lawsuit or the Fifth Circuit Court of Appeals issues “further direction.”  Notably, the injunction doesn’t require schools to take any specific action or refrain from taking action.  You can read the injunction order here.

For now, OCR’s guidance is on hold.  The injunction will likely be challenged, and our firm will continue to update our clients as this develops.  In the meantime, schools should work closely with legal counsel as questions arise over these issues.

 

 

 

OSERS Takes Aim at Exclusionary Discipline

by Dean Micknal

by Dean Micknal

It may be hard to believe, but summer is almost over.  This means that students will soon be returning to classrooms, which, according to the Department of Education, is where they need to stay.

Earlier this month, the Office of Special Education and Rehabilitative Services (OSERS) issued a strongly worded “Dear Colleague Letter” addressing concerns regarding the use of short-term removals as a disciplinary measure for children with disabilities.  A copy of the guidance can be accessed here.

The guidance states that recent data regarding short-term disciplinary removals “strongly suggest” that IEPs aren’t being implemented appropriately.  In response, OSERS is reminding schools that IDEA requires the provision of appropriate behavioral supports to children with disabilities who require such supports.  Failure to do so could result in violating the Least Restrictive Environment mandate and/or denying such students a free, appropriate public education.

What does this mean for the upcoming school year?  Districts should anticipate that the use of any exclusionary disciplinary measures involving students with IEPs may come under greater scrutiny than before.  While this doesn’t mean that disciplinary removals cannot be used, it is imperative that districts document the consideration, development, and implementation of positive behavioral interventions and supports in response to behavior that may otherwise be subject to disciplinary consequence.

The guidance raises two other important points for consideration.  First, districts are expected to understand that the obligation to provide positive behavioral interventions and supports extends to any student with an IEP, regardless of whether the behavior is a manifestation of the student’s disability.  For example, a student with a hearing impairment has the same right to receive positive behavioral interventions and supports as a student with an emotional disturbance.

Second, OSERS is openly questioning the legitimacy of what is commonly referred to as the “10 FAPE Free Days” rule.  The DCL does not explicitly contradict the authority to impose short-term removals for code of conduct violations that is found at 34 CFR §300.530.  However, OSERS is expressing concern that characterizing that authority as providing 10 “free days” may “discourage school personnel from considering whether behavioral supports are needed to address or improve patterns of behavior that impede learning before, during, or after short-term disciplinary removals are implemented.”  In other words, short-term disciplinary removals may not constitute denials of FAPE, but they still require the behavioral interventions provided by the IEP to be reviewed and/or revised as necessary.

As a practical matter, the guidance does not impose any new laws or requirements.  However, it does suggest that current disciplinary practices are going to be facing increasing scrutiny.  Administrators should be aware of this fact and take steps to ensure disciplinary procedures are properly followed and documented.  If you have questions about the new guidance, or student discipline in general, the attorneys at Leasor Crass, P.C. are ready to help.

From Pokémon Go to “Where Can I Go?”: Legal Battles over Restroom Access in Schools

by Christie Hobbs

by Christie Hobbs

While many students were chasing Pokémon this summer, others were in hot pursuit of court rulings over restroom access.  Nationwide, there are 17 lawsuits pending over this question:  Which restroom can a transgender student use at school?

Dear Colleague Letter:  Federal Guidance  

In May, the Office for Civil Rights issued a “Dear Colleague Letter” instructing all schools to allow students to use the restrooms and locker rooms “consistent with their gender identities.”  The Letter defines “transgender” to mean “those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”

Title IX prohibits discrimination in educational programs on the basis of sex.  The Letter advises schools to “treat a student’s gender identity as the student’s sex for the purposes of Title IX.”  It instructs schools that, when a student or parent notifies a school that the student will “assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.”  The Letter does not require a student to have made formal changes, such as changing the sex on a student’s birth certificate, before the accommodations are put in place.

The Letter recommends, among other things, that schools allow transgender students to use restrooms, locker rooms, housing, and overnight accommodations consistent with their gender identity.  It advises that transgender students may not be unnecessarily excluded from extracurricular activities and single-sex classes based on their gender identity.  Notably, the Letter does not change participation in girls and boys athletic competitions and allows sex-segregated teams for contact sports or when selection is based on competitive skill.

Before the Letter was issued, many schools were working with transgender students on an individual basis to accommodate their needs.  Some schools allowed the individual student to choose which restroom to use.  Others designated separate one-person facilities for student use.  Other schools provided no accommodations and required transgender students to use the facilities that matched their biological sex.

Nationwide, school policies have differed on transgender restroom access, partly because of different laws in each state.  Some states have laws prohibiting discrimination based on gender identity.  In those states, the restroom question is easy to answer.  The student may use the restroom of the gender with which he or she identifies.  In states like Texas where there is no statute on point, the answer has been less clear.  School districts have exercised more local discretion as they responded to students on a case-by-case basis.

What does Texas law say? 

Texas does not have a statute that expressly prohibits discrimination on the basis of gender identity.  Currently, there are no school-related cases from Texas courts, the Fifth Circuit, or the United States Supreme Court which give binding legal precedent that Texas school districts must follow with respect to transgender students.  Nevertheless, Texas schools must follow their own policies which prohibit discrimination and harassment on the basis of gender.  Additionally, Title IX applies to Texas schools and prohibits discriminating against students on the basis of sex in education programs and activities.

The Letter offers guidance to schools, but it is not binding legal authority.  However, schools that are found to be noncompliant with OCR’s guidance may be subject to investigation and possible sanctions, including the loss of federal funds.

Texas Sues the Federal Government

Ten days after the Letter was issued, Harrold ISD adopted a policy limiting restroom access by biological sex.  Two days later, Harrold ISD, the State of Texas, and eight other states filed suit in the Northern District of Texas, Wichita Falls Division, against the federal government and several federal departments and agencies, including the Department of Education and the Department of Justice.  The lawsuit alleges that the Letter has “no basis in law” and seeks to bar the federal agencies from enforcing their guidance nationwide.  Two additional states have joined Texas as plaintiffs.  On July 6, the plaintiffs asked the court to enter a nationwide injunction against the defendants to prevent them from enforcing the guidance set forth in the Letter.

On July 27, twelve states and the District of Columbia filed an amicus brief opposing the relief sought by Texas and its co-plaintiffs.  They support the guidance in the Letter and do not want to be subject to a nationwide injunction that would extend into their states.  Importantly, these states have statutes that extend protection to transgender people through definitions of sex discrimination or prohibitions on discrimination on the basis of gender identity.  A nationwide injunction could contradict laws currently on the books in those states.  On August 3, the plaintiffs filed a reply brief in support of the injunction.

Litigation in Virginia

Meanwhile, in Virginia another high-profile legal battle is heating up in G.G. v. Gloucester County School Board.  There, a transgender student sued his school after the school board passed a rule requiring that students use the restroom corresponding with their biological sex.  Before the board action, the student (who was born biologically female but identifies as male) had been allowed to use the boys’ restroom without incident.  The Court of Appeals in the Fourth Circuit issued a preliminary injunction allowing the plaintiff to use the boys’ restroom and prohibiting the school from enforcing its rule on restroom access, pending further court action.

On August 3, the United States Supreme Court issued a stay on the Fourth’s Circuit’s preliminary injunction.  The stay puts that injunction “on hold” and allows time for the Gloucester County School Board to file a petition for a writ of certiorari and ask the Supreme Court to take up the case.  If the Supreme Court grants the writ and takes up the case, it may issue binding legal precedent that schools across the nation will have to follow.

Key Points for Texas Schools

Our firm will keep a close eye on these cases and help our clients comply with the law as it develops.  In the meantime, there are a few key points schools should keep in mind:

  • Schools must take action to protect students from harassment, bullying, and discrimination. Regardless of a student’s gender identity or where a student uses the restroom, all students should be treated with equal dignity and respect.
  • Schools are not required to change a student’s name on school records, diplomas, and transcripts unless the student’s name is changed legally.
  • When a student asks to be called by a preferred name that corresponds to his gender identity, that request should be honored, just as a school would allow a student named Robert to be called Bobby. Although permanent school records must match a student’s legal name, a student’s preferred name may be used on class rosters, identification badges, and awards.
  • A transgender student should be allowed to dress according to his gender identity, so long as the student conforms to the dress code of that gender.
  • Schools should ensure that transgender students have equal access to school programs and activities. Beginning August 1, 2016, UIL rules require that schools use a student’s birth certificate to determine eligibility for certain athletic competitions.
  • Schools should respect student privacy and refrain from disclosing personal information about students, in compliance with FERPA. School records and personally identifiable student information (which may include transgender status) should not be disclosed, except to school personnel who have a legitimate educational interest in the information.
  • The question of restroom access has not been legally settled in Texas. In each situation, schools are working to balance several competing interests:  students’ rights to be protected from discrimination, equal access to educational programs, privacy, and safety concerns.  Whenever possible, schools should work closely with legal counsel, students, and families to reach practical solutions for all parties involved.

Until the legal issues are settled in Texas, schools may find themselves in a “Catch 22” situation when these questions arise.  The lawyers at Leasor Crass are here to help you work through these issues and comply with the law.

Rules Adopted for Video Surveillance of Special Education Settings: Some Good, Some Bad, Mostly Just Ugly

by Dean Micknal

by Dean Micknal

Yesterday afternoon the Commissioner of Education took action to formally adopt rules for implementing Texas Education Code §29.022.  The adopted new rule, which becomes effective August 15, 2016, can be viewed here.

Technically, the rule isn’t new at all.  Rather, the Commissioner has adopted the rule that was first proposed in April, with a handful of changes that were made at adoption in response to public comment.  Several of these changes significantly alter what was proposed in April.  Most notably, by substituting the word “or” with “and” the Commissioner significantly restricted what constitutes an “incident” for purposes of triggering access to surveillance video.  As adopted, an event or circumstance will only constitute an “incident” if it:

“involves alleged “abuse” or “neglect,” as those terms are described in Texas Family Code, §261.001, of a student by an employee of the school district or charter school or alleged “physical abuse” or “sexual abuse,” as those terms are described in Texas Family Code, §261.410, of a student by another student”

and

“allegedly occurred in a self-contained classroom or other special education setting.”

Other notable changes include:

  • Requiring surveillance to be conducted in settings in which extended school year services are provided, rather than leaving the decision to local discretion;
  • Requiring the adoption of written policies that include procedures for responding to a request for video surveillance;
  • Clarifying that procedures must be adopted for providing advanced written notice to campus staff and parents of students assigned to a setting in which surveillance will be conducted;
  • Replacing the required statement regarding the “roles and responsibilities” of individuals who will have access to cameras and recordings with a statement “regarding the personnel who will have access…for purposes of operating and maintaining the equipment or recordings”:
  • Removing the word “routine” as a qualifier on the prohibition against using recordings for teacher evaluation or monitoring;
  • Clarifying that only administrators need be trained in de-escalation and restraint techniques for purposes of viewing a video recording in response to a complaint or an investigation of an incident;
  • Clarifying that a report must be submitted if abuse or neglect is suspected; and
  • Adding a provision that requires a recording believed to document a possible violation of school district policy to be released for viewing to the employee who is the subject of the disciplinary action at the request of the employee.

Undoubtedly, what districts may find most interesting/concerning are revisions that were not made to the proposed rule.  For example, TEA expressly declined to interpret the law as establishing a timeline for installing video equipment after a request has been received, leaving districts with the discretion to determine what constitutes “a reasonable time period.”

Most importantly, the text of the rule and TEA’s response to public comments make it clear that TEA interprets “the express language in TEC, §29.022(a)” to mean that “a single request requires that video surveillance be conducted districtwide.”  TEA notes that it has sought guidance on this interpretation from the Attorney General (referring to its March 11th request for an expedited opinion) and will modify the rule as necessary upon receipt of the Texas Attorney General’s opinion.

Similarly, TEA has refused to revise the rule to include a provision to clarify another issue that was raised in the request for an expedited opinion…when and/or if video surveillance may be discontinued.  Currently, the rule requires a campus to continue to operate and maintain a video camera “for as long as the classroom or setting continues to satisfy the requirements in TEC §29.022(a).”  Again, TEA’s comments assure districts that it will modify the rule as necessary.

In sum, the rules as adopted have a distinctively “work-in-progress” feel.  Unfortunately, this appears to be a reflection of well-intentioned, but poorly executed legislation, and is unlikely to change between now and the beginning of school.  Leasor Crass, P.C. is ready and willing to assist your district in deciphering and making a good-faith effort to comply with these frustrating mandates.