Blog | Leasor Crass, P.C

February 24, 2022 By editor

Child Abuse Reporting Mandate and Attorney General Opinion KP-0401

On Friday, February 18, 2022, Texas Attorney General Ken Paxton issued Opinion No. KP-0401, in which the Attorney General opined that a court could find that certain enumerated “sex-change procedures”, when performed on minors, constitute child abuse under several provisions of Chapter 261 of the Texas Family Code.

The specific procedures addressed in the Opinion include:

sterilization through castration, vasectomy, hysterectomy, oophorectomy, metoidioplasty, orchiectomy, penectomy, phalloplasty, and vaginoplasty;
mastectomies;
removing from children otherwise healthy or non-diseased body part or tissue; and
providing, administering, prescribing, or dispensing following categories of drugs to children:

a. puberty-suppression or puberty-blocking drugs;
b. supraphysiologic doses of testosterone to females; and
c. supraphysiologic doses of estrogen to males.

Importantly, the AG’s Opinion includes a pointed reminder that Family Code Section 261.101 imposes mandatory reporting requirements on both the general public and professionals who have “reasonable cause to believe” that a child has been abused. The Opinion reiterates that the term “professional” includes “teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers” and closes with a warning that “[a] failure to report under these circumstances is a criminal offense.”

On Tuesday, February 22, 2022, Governor Greg Abbott forwarded the AG’s Opinion to the Commissioner of the Texas Department of Family and Protective Services (“DFPS”), calling on DFPS to “conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.” The Governor’s correspondence, which closed with the directive that “[t]o protect Texas children from abuse, DFPS and all other state agencies must follow the law as explained in OAG Opinion No. KP-0401”, was also forwarded to a number of other state agency commissioners, including TEA Commissioner Morath.

Those of us who have worked in public education over the last several years understand that the issue of gender identity is rife with emotional, legal, and political complications. That said, public educators should be aware that they do have an obligation to report when they have reasonable cause to believe a child has been abused. Determining whether an individual has “reasonable cause” to suspect abuse always requires a case-by-case determination. However, our firm has consistently advised our clients to err on the side of reporting when they have doubts about conduct that may or may not constitute child abuse.

Ultimately, a court of law will need to decide whether and/or in what circumstances the procedures identified in KP-0401 actually constitute child abuse. In the interest of remaining consistent, our firm believes educators should be aware of the AG’s interpretation and continue to err on the side of caution should they question whether knowledge of such procedure(s) triggers a legal obligation to report. In doing so, the publicized opinions of the Attorney General and Governor may lead a reporter to believe that making a report based on knowledge of an enumerated procedure(s) would likely constitute “good faith” so as to provide immunity from any related civil or criminal liability.

Please do not hesitate to contact the education lawyers at Leasor Crass, P.C. if you have additional questions about this matter.

October 6, 2021 By LeasorCrass

Tempted by Exemptions

As mask and vaccine mandates gain more traction throughout the nation as a means of preventing and hopefully eradicating COVID-19, many people who vehemently oppose these measures are attempting to use religious exemptions as a last-ditch effort to avoid compliance. Religious exemptions to vaccinations have been asserted in the past, but perhaps never in such a vocal and widespread manner.

School districts are at the center of this constitutional and legal debate, with both employees and students claiming religious arguments in an attempt to avoid masking up or receiving the COVID vaccine. Arguments have been made with regard to mask policies and vaccine requirements and stem from a handful of different legal sources, including Title VII of the Civil Rights Act of 1964, and the Free Exercise Clause of the First Amendment. Many employers and school officials have called into question the legitimacy of these religious exemptions and the arguments presented in favor of them.

The process for analyzing these claims depends on who is making the claim and what laws they are using to support it. The Free Exercise Clause protects citizens’ right to practice religion as they please, so long as the practice does not run afoul of public morals or a compelling government interest. This argument is used by many individuals attempting to say that in order to freely practice their religion, they cannot comply with these government mandates. However, there is a compelling government interest of public health that likely outweighs the protections afforded by the Free Exercise Clause.

Another argument widely used to combat these mandates revolve around Titles II and VII of the Civil Rights Act of 1984. Title II protects against religious discrimination in public accommodations, but also has no applicability in the face of neutrally applicable laws. State and District mask mandates are neutral and generally applicable to all individuals, regardless of religious affiliation. Title VII of the Act requires employers to reasonably accommodate an employee’s sincerely held religious belief, unless doing so would cause an undue hardship on the conduct of the employer’s business.

Determining the “sincerity” of these religious beliefs is proving to be the most difficult aspect of this analysis. These beliefs do not have to be rational but cannot be socially or politically motivated. Beliefs also do not need to be recognized by religious leaders in order to be considered legitimate and sincerely held. Rather, in the era of COVID-19 mandates the EEOC has stated that people must have a legitimate explanation as to the sincerity of their beliefs for a religious accommodation to be considered.

This area of religious exemptions is largely unclear at the present time. The District’s best option upon receiving a request for a religious exemption or accommodation should be to contact legal counsel, but if that is not an option, the following questions and answers should provide some guidance as to how to proceed, and what is allowed versus what is not.

Q & A on Sincerely Held Religious Beliefs

Q: What constitutes a sincerely held religious belief?

A: A sincerely held religious belief under Federal law is considered to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. Moreover, the term “religion” includes all aspects of religious observance and practice, as well as belief. This means that so long as an individual sincerely holds this belief in his or her own life, it need not be a belief recognized or supported by religious authorities.

Q: Can and should the District require documentation of the request?

A: Requesting documentation of the existence of this sincerely held religious belief is likely to be futile due to the fact that religious leaders and authorities need not be in support of this specific belief, so long as the individual actually holds this belief to be sincere in his or her own life. Getting an “excuse” written by a pastor, rabbi, or the pope might bolster a religious exemption claim, however the request can still be considered a sincerely held belief even without outside religious support.

Q: To what extent can a district make the person requesting an accommodation prove that they are entitled to an exemption?

A: Because this is such a gray area, there is no guidance as to exactly what districts and other employers are allowed to ask or are prohibited from asking. The EEOC has stated that people MUST have a legitimate explanation as to the sincerity of their religious beliefs for a religious accommodation to be considered. To that end, districts are well within their rights to ask for the individual requesting the exemption or accommodation to provide them an explanation as to why this is a sincerely held belief. A district can assess several factors in considering the sincerity of a religious belief. These factors include whether:

the employee or student’s behavior is inconsistent with the professed belief;
the accommodation constitutes a desirable benefit likely to be sought for secular reasons;
the timing of the request renders it suspect; and/or
the District has an objective reason to believe the accommodation is not sought for religious reasons.

Q: If the belief is sincerely held, must the District grant the requested exemption?

A: According to the Supreme Court, under Title VII, an employer is not required to accommodate an employee’s religious beliefs and practices if doing so would impose an “undue hardship” on the employer’s legitimate business interests. An undue hardship exists as a matter of law where an employer is required to bear more than a de minimis cost. The EEOC has explained that the factors for employers to consider in denying a religious accommodation include whether:

the accommodation is too costly;
it would decrease workplace efficiency;
the accommodation infringes on the rights of other employees;
the accommodation requires other employees to do more than their share of hazardous or burdensome work;
the proposed accommodation conflicts with another law or regulation; and/or,
it compromises workplace safety.

Q: What are the risks of denying a religious exemption request?

A: The largest risk in denying a religious exemption request would be facing a discrimination claim or a lawsuit and the potential costs and fees that come with litigation. However, courts generally apply a burden shifting analysis when considering discrimination claims. This means that a district with a solid argument that the belief is not sincere or the accommodation presents an undue hardship would have the potential to prevail.

There is so much gray area in this particular area of law. Districts should take precautions to ensure they maintain safety on school grounds, but also do not infringe on the rights of students and employees. It is a difficult balancing act, which is only exacerbated by both the novelty and intensity of the debate. The good news is that as more religious exemptions are requested and challenged; it is likely that clearer legal guidance will develop.

If you have any questions or concerns about religious exemptions in relation to COVID-19 mandates, please do not hesitate to call any of the attorneys at Leasor Crass, PC.

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.

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