Blog | Leasor Crass, P.C

June 26, 2021 By LeasorCrass

Schools May Regulate Off-Campus Student Speech, But Tread Cautiously

The U.S. Supreme Court recently issued its long-awaited decision in Mahanoy Area School District v. B.L., ruling that a school district violated a cheerleader’s First Amendment rights when it suspended her from the cheer team because of her off-campus social-media posts. However, in doing so, the Court explained that its ruling was narrowly limited to the facts before it and that, in other situations, students’ First Amendment rights in off-campus speech may very well need to yield to the special interests of schools in limiting substantial disruption in the school setting and protecting the rights of other members of the school community. But if you were hoping for a bright-line rule as to when a school’s interests will prevail over those of students, this case will not give you that.

The 1969 case, Tinker v. Des Moines Independent Community School District, provides the backdrop for the B.L. decision. Tinker involved on-campus speech (students wore black armbands to school to protest the Vietnam War), and there, the Supreme Court held that students may freely express their opinions, even on controversial topics, as long as they do not “substantially interfere with the work of the school or impinge upon the rights of other students.” Further, and of importance to the B.L. Court, Tinker also said that “[c]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

In the B.L. case, Pennsylvania student, B.L., joined her high school’s junior varsity cheerleading squad in her freshman year. The squad held tryouts for the next school year in May. Before she could try out, B.L. had to sign a code of conduct that required squad members to show respect for their teammates, coaches, the school, teachers, and other schools’ cheerleaders. The code of conduct also forbade the use of profanity and prohibited cheerleaders from posting “negative information” about “cheerleading, cheerleaders or coaches” on the Internet.

B.L. signed the document and tried out for the varsity team. Unfortunately, she did not make varsity and was instead placed on the JV squad again for her sophomore year. B.L. took issue with this, particularly because an incoming freshman made the varsity squad. That weekend, B.L. visited a convenience store where, in frustration, she used her cell phone to post two photos on her Snapchat “story” which allows any of the user’s “friends” to view the posts for 24 hours before disappearing. The first photo was a selfie of B.L. and a friend with raised middle fingers and the caption, “F*** school f*** softball f*** cheer f*** everything.” (She used all the letters, though.) The second post read, “Love how me and [another student] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?”

Naturally, some of B.L.’s Snapchat “friends” were students at her high school and were members of the cheerleading squad. And predictably, one of those kiddos took screenshots of B.L.’s posts and shared them with other squad members. One of those members showed the pictures to her mom who was a cheerleading coach. That week, several cheerleaders and other students approached the coaches “visibly upset” about B.L.’s posts. The posts were also briefly discussed during an Algebra class taught by one of the coaches. As a result, the coaches decided to suspend B.L. from the cheerleading team for one year for violating the team’s code of conduct.

Faced with this significant punishment, B.L. and her parents sued the school district, arguing that B.L.’s speech rights under the First Amendment had been violated by the school’s decision. A federal district court in Pennsylvania agreed. The school district then appealed to the U.S. Court of Appeals for the Third Circuit, where it—along with all school districts in Pennsylvania, New Jersey, and Delaware—lost in an even worse way: the Third Circuit declared that off-campus speech was not subject to Tinker and could not be regulated by schools at all.

Thankfully, the U.S. Supreme Court disagreed with that extreme position. While the Supreme Court did agree that, under these specific facts, the school overstepped, the Court rejected the Third Circuit’s categorical take on off-campus speech. (Cue the collective sigh of relief from PA, NJ, and DE school districts.) According to the Court, the special interest of schools recognized in Tinker do not disappear when the speech occurs off campus, but it is diminished due to three characteristics unique to off-campus speech.

First, unlike on-campus speech, when a student speaks off campus, schools will rarely stand in loco parentis (meaning, in the place of parents). Additionally, if schools could regulate speech both on and off campus, that would encompass all speech a student utters in a 24-hour day. Courts are therefore instructed to be more skeptical of a school’s efforts to regulate off-campus speech because those efforts may mean the student cannot engage in that kind of speech at all. Finally, the special interest of schools in policing off-campus speech is also diminished by the arguably even-greater interest and higher calling of schools to allow students to express unpopular ideas; as the Supreme Court stated, “America’s public schools are the nurseries of democracy[,]” and “[o]ur representative democracy only works if we protect the ‘marketplace of ideas.’”

As for B.L.’s posts, her speech amounted to a “criticism of the rules of a community of which B.L. forms a part.” They did not involve unprotected speech like fighting words or obscenity. Her speech would have, therefore, been entitled to strong protection if said by an adult. The Court next analyzed when, where, and how B.L. spoke: her posts appeared outside of school hours from a location outside the school; she did not identify the school in her posts or target any member of the school community with vulgar or abusive language; and she transmitted her speech through a personal cellphone and to an audience consisting of her private circle of Snapchat friends.

Under these facts, the Supreme Court concluded that the school’s interest in teaching good manners and punishing vulgar language was not sufficient to overcome B.L.’s interest in free expression. As for the school’s interest in trying to prevent disruption, there was little to no evidence of any substantial interference or disruption. Discussion of the posts took, at most, 5-10 minutes of an Algebra class for a couple of days, and some students were “upset” about the content of the posts. The Court explained that this was not enough to satisfy Tinker’s demanding standards: “to justify prohibition of a particular expression of opinion, [a school] must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The school, therefore, violated B.L.’s First Amendment rights when it suspended her from the cheerleading team. However, the Court specifically stated that its holding was limited to the set of facts before it and that it would leave for future cases to determine what may count as “off campus” speech and when/if a school’s special interest may prevail over a student’s rights to free speech and expression.

Although the B.L. decision does give schools the ability to address what students say outside the four walls of the school building, this is not a blank check. Schools should proceed cautiously before disciplining students for such speech and consider factors including the content and context of the speech; where, when, and how the speech occurred; and whether there is sufficient evidence that the speech caused substantial disruption to the school setting or invaded the rights of other students or staff. If your district needs help navigating these complex issues, Leasor Crass is here to assist.

June 17, 2021 By LeasorCrass

Sex Discrimination 2.0

One year ago, the United States Supreme Court handed down their decision in Bostock v. Clayton County. In making its decision, the Supreme Court found that employers who discriminate against employees based on sexual orientation and/or gender identity are inherently treating employees differently because of their sex, the exact practice Title VII prohibits in all expressions. The full Bostock opinion can be read here.

Since the Bostock decision was handed down, the public school community has been waiting and expecting the Department of Education to issue guidance on the decision’s applicability to Title IX and public schools. As of June 16, 2021, the wait is over. The Department of Education’s Office for Civil Rights (OCR) issued a Notice of Interpretation yesterday clarifying that it will enforce Title IX’s prohibition on discrimination on the basis of sex including (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

In its Notice, OCR explains it has long recognized Title IX protects all students, including students who are homosexual, bisexual, and transgender, from harassment and other forms of discrimination. Further, OCR has acknowledged Title IX prohibits discrimination against all students who may not conform to stereotypical ideas of masculinity and femininity. However, OCR admitted that it has at times stated Title IX’s prohibition on discrimination based on sex stopped short of prohibiting discrimination based on sexual orientation and gender identity. As a result, OCR issued its Notice of Interpretation to make clear that the Department of Education “interprets Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity.”

OCR gleaned its interpretation by following the analysis of the Supreme Court in Bostock and identifying the textual similarities between Title VII and Title IX. Noting both statutes prohibit sex discrimination, with Title IX utilizing the phrase “on the basis of sex” and Title VII using “because of” sex and acknowledging the Supreme Court has used both phrases interchangeably. Further, various federal courts, including the 4^th and 11^th Circuit, have relied on Bostock in determining that Title IX’s prohibition against discrimination based on sex includes discrimination based on sexual orientation and gender identity. Lastly, OCR concluded the interpretation provided in its Notice “is most consistent with the purpose of Title IX, which is to ensure equal opportunity and to protect individuals from the harms of sex discrimination.”

In other, but related news, Lieutenant Governor Dan Patrick asked Governor Greg Abbott to call a special legislative session in June to address three bills that died in the Texas House of Representatives last month. One of the bills concerned banning transgender students from playing on sports teams based on their gender identity. As of today, Governor Abbott has not acted on the Lieutenant Governor’s request to put the three bills, including the gender-related bill, on the agenda for a special session, but has expressed disappointment that the bills did not survive the regular session. It is unclear whether OCR’s Notice of Interpretation will spur any action on the part of the Texas Legislature.

If you would like to read the full Notice of Interpretation, click here.

If you have any additional questions about this Notice or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

June 3, 2021 By LeasorCrass

Retaliation: Who Did What and When?

Shortly after sharing concerns about the educational placement of a student with a disability, a Michigan parent received a truancy letter. The letter, sent by the district’s attendance agent, explained the legal repercussions of the student’s unexcused absences and that the parent could be prosecuted under state law. The attendance agent, unaware of the prior parent complaints, took action in accordance with district polices and practices, which required the district to initiate the truancy process after 12 unexcused absences.

In response to the letter, the parent filed a complaint with OCR alleging the district’s action was retaliation for her complaints about the student’s placement. After investigating the complaint, OCR found the letter was not reprisal for the parent’s placement complaints. In making this determination, OCR concluded that the district had “articulated a legitimate reason for its action,” and that the attendance agent responsible for the truancy letter was not aware of placement concerns and based the finding on objective evidence from the student’s attendance record.

While the district overcame the complaint in this case, parental claims of retaliatory conduct similar to this incident are increasing. Section 504 prohibits districts from discriminating against qualified students with disabilities. Public schools are required to provide such students with a free, appropriate education at public expense (FAPE). 34 C.F.R. § 104.33(a). Additionally, Section 504 incorporates the anti-retaliation provision of Title VI of the Civil Rights Act of 1964, which “prohibits recipients from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege…or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.” 34 C.F.R. §104.61; 34 C.F.R. §100.7(e).

For an allegation of retaliation to be sustained, OCR must determine that:

An individual experienced an adverse action caused by the recipient;
The recipient knew that the individual engaged in a protected activity or believed the individual might engage in a protected activity in the future; and
There is some evidence of a causal connection between the adverse action and the protected activity.

All three elements must exist for OCR to substantiate a prima facie case of retaliation. If any one of the elements cannot be established, then OCR finds insufficient evidence of a violation. If, however, all the elements are established, an inference of unlawful retaliation is raised, and OCR proceeds to the next stage of the analysis. To ascertain whether this inference might be rebutted, OCR will then determine whether the district can identify a non-retaliatory reason for its actions. If such a reason is identified, OCR’s investigation proceeds to the third stage. At the third stage, OCR examines the evidence to resolve what the reason was (or reasons were) for the intimidation, threat, coercion, or discrimination. U.S. Dep’t of Educ., Office for Civil Rights, Case Processing Manual, (Aug. 2020).

Actions that could be seen as seeking to deter parent advocacy include, but are not limited to, truancy referrals, civil restraining orders, and abuse and neglect claims. While districts should not shy away from taking such actions, and in some cases are legally mandated to do so, it is essential that these measures be taken only for nonretaliatory and legitimate purposes.

It is equally important for districts to understand and recognize that even legitimate actions can provide the basis for parents to exercise their procedural safeguards. When this happens, it can be difficult to avoid the trap of taking it personally…which can result in a heightened perception of retaliation. Best practice is to take a deep breath, compartmentalize the complaint/investigation, and trust the process. If your district finds itself spinning into the retaliation cycle, the school law attorneys at Leasor Crass, P.C. have the experience to help.

March 29, 2021 By LeasorCrass

Mishandling Reports of Sexual Harassment Could Cost Your District Millions

Late last week, it was announced that USC has agreed to pay $852 million to settle claims made by 710 women alleging sexual assault and sexual harassment by a former USC physician. This is in addition to a $200 million settlement USC previously agreed to pay in a federal class action arising from similar allegations against the same employee.

This is the world of Title IX, and this is what could potentially happen when school districts and universities mishandle reports of sexual harassment. Failure to respond appropriately to these types of allegations could result in sanctions from the Department of Education or liability for money damages in court. (USC took a hit in both places.)

USC’s liability is rooted in claims that the school was deliberately indifferent to sexual harassment and sexual assault complaints about its employee. School districts are not immune from these kinds of suits.

The USC settlement is a huge number, but that is only due to the large number of plaintiffs involved. This latest settlement works out to about $1.2 million per plaintiff. That amount is not beyond the realm of possibilities in the K-12 context. There have even been some jury verdicts against school districts that are significantly higher.

It is also critical to remember that the Department of Education issued regulations last summer concerning how districts must respond to alleged sexual harassment. The regulations are quite extensive and impose a multitude of requirements on districts, including a very specific and detailed grievance process that must be used to handle formal complaints of sexual harassment.

If, and when, your district is faced with a report of Title IX sexual harassment, it is worth a call to your lawyers. We are here to coach you through the regulations to help make sure your district is in compliance. If you haven’t done so yet, we can also help with mandatory policy updates, notices, and training for your personnel to make sure you’re well-positioned before your next complaint comes in.

Above all else, remember this: Do not ignore allegations of sexual harassment. Deal with them promptly and properly. Mishandling these allegations could cost you millions, not to mention the trust of your community.

March 4, 2021 By LeasorCrass

Party On?! Chapter 21 and the First Amendment

Believe it or not, contract season is right around the corner. And, as you are no doubt aware, Texas Governor Abbott recently issued Executive Order GA-34. The Order, which goes into effect on March 10, 2021, removes the state-wide operating limits and mask mandate that have been (depending on your perspective) keeping the spread of COVID in check and/or trampling personal liberties since last July. The alignment with upcoming St. Patrick’s Day and Spring Break is almost astronomical in nature. What could possibly go wrong?

While we sincerely hope public school district employees make good choices over the next several months, we thought this might be a good time to address some common questions about employees behaving badly.

Can public school employees be disciplined for off-campus behavior?

Yes. While public school employees do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”, courts have long recognized that the First Amendment protections enjoyed by a public employee must be balanced with the public employer’s interest in an efficient, disruptive-free workplace. While an entire semester could be spent on the nuances of this area of law, a very simplified distillation is as follows:

Is the employee speaking/acting pursuant to their official duties?
1. If so, the speech is not protected.
2. If not, move to the second step.
Is the employee speaking as a citizen on a matter of public importance?
1. If not, the speech is not protected.
2. If so, move to the third step.
Does the employee’s interest in free speech outweigh the school’s interest in maintaining an efficient, disruptive-free workplace?
1. If so, the speech is protected.
2. If not, the employee may be disciplined.

By way of example, imagine that an employee travels to South Padre Island for Spring Break and ends up on a local news broadcast. If the resulting video depicts the employee giving her thoughts on the wisdom of the Governor lifting the mask mandate, that speech (pro or con) would likely be protected. However, video of the employee doing a keg stand on the beach while drunkenly singing “Danny Boy” would support disciplinary action.

Termination or nonrenewal? What’s the difference?

If Spring Break shenanigans should result in employment action, it will become important to weigh the options for termination vs nonrenewal. Simply put, termination means ending a contract before the contract expires according to the terms that have been agreed upon. Nonrenewal means refusing to renew a contract for another term. With respect to Chapter 21 Contracts:

Continuing Contracts aren’t subject to renewal because they…um…continue. Consequently, Continuing Contracts must be terminated for good cause.
Term Contracts may be ended during the contract period for good cause. However, by their nature, Term Contracts end after a set amount of time, typically one or two years. State law requires that these contracts be renewed for another term unless the school district takes action by determining that one or more established policy reasons for nonrenewal exist. These reasons are typically set out in District Board Policy DFBB(LOCAL).
By law, a Probationary Contract may not be for a term exceeding one school year. A Probationary Contract may be ended during this contract period for good cause. However, the law also allows a district to terminate the employment of an employee on a probationary contract at the end of this one-year contract period if the Board determines that such termination will serve the best interests of the District.

All three types of Chapter 21 contracts may be terminated for good cause during the contract period (importantly, Term Contracts have a different legal standard for “good cause” than Probationary or Continuing Contracts.) Additionally, all three types of contracts require notice and an opportunity for a hearing before termination can occur. The specific notice and hearing requirements are statutorily defined and must be followed precisely to ensure that the termination is legal.

Term and Probationary Contracts may be nonrenewed at the end of the contract period. Probationary Contracts only require that notice of the Board’s decision to terminate employment be given in accordance with specific statutory requirements.

Term Contracts provide the employee with more due process. The Board must meet specific statutory requirements regarding notice of the decision to propose nonrenewal, an opportunity for a hearing, and then notice of the actual decision to nonrenew. Consequently, any action to nonrenew a Chapter 21 Contract is, at a minimum, a two-step process that requires multiple meetings.

At this time of year, it is typically more financially prudent to initiate nonrenewal proceedings than to engage in termination. This is due in part to the more stringent good cause standard and the requirement that a termination hearing be held before an independent hearing examiner, while a nonrenewal hearing may be conducted by the school board. Of course, nonrenewal may not be an option if the employee is in the midst of a multi-year contract.

Our sincerest hope is that everyone will continue to behave in a safe and responsible manner. However, should the confluence of personal freedom, green beer, and Spring Break result in poor choices, districts will need to be prepared to act swiftly to address personnel issues in accordance with the legal protections afforded by Chapter 21. The education lawyers at Leasor Crass, P.C. are ready to help ensure that these legal mandates are followed.

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