Education Lawyers | Leasor Crass, P.C.

Welcome to Leasor Crass, P.C. Leasor Crass, P.C. is a boutique law firm located in Mansfield, Texas, with a main focus on the representation of public schools. The firm is managed by Mike Leasor and Rhonda Crass, seasoned attorneys with …

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October 6, 2021 By LeasorCrass

Tempted by Exemptions

by Katie Pestcoe, Law Clerk

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.

Filed Under: Blog, COVID-19, Personnel, Students

November 9, 2020 By LeasorCrass

Understanding Compensatory Services

Dean Micknal
by Dean Micknal

As schools continue to navigate the whitewater rapids of COVID-19, the issue of compensatory services has steadily started gathering more attention both locally and nationwide. While not unexpected given the massive disruption the pandemic has, and continues to, wreak on the provision of special education services, discussions regarding compensatory services are rarely welcomed. This can be attributed to compensatory services being stigmatized as adversarial and punitive. In fact, they are neither.

Compensatory services is not expressly defined in IDEA.  Rather, the statute provides courts with the broad authority to “grant such relief as the court determines appropriate.”  Consequently, when a violation of IDEA occurs, compensatory education may be awarded.  It is very important that this be distinguished from some form of punitive damages.  The purpose of compensatory education is not to punish a school for doing something wrong, instead, the remedy is available to enable the student to be placed in the same position he or she would have been but for the school district’s violation of IDEA.

Due to the lack of statutory clarity, the actual means of achieving this restoration can be confusing in and of itself.  Generally speaking, courts are divided into two camps.  The first is a one-to-one or direct calculation method.  Under this scheme, the student is simply awarded the amount of service that has been denied.  For example, if a student’s IEP required the school to provide five twenty-minute sessions of speech therapy during the first six-weeks of a school year and the pandemic prevented all five sessions from being provided, a court could award the student 100 minutes of compensatory speech therapy.

While this direct calculation method is straightforward, it becomes confusing when applied to less concrete services such as inclusion support and burdensome when applied to instructional services.  Consequently, another doctrine has developed in which an attempt is made to calculate the actual amount of compensatory education needed to “right the wrong.” Importantly, this is the approach that the Texas Education Agency appeared to adopt in its May 2020 guidance “Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19” (available here.)

In its guidance, TEA clarifies that compensatory services “should not be viewed as remedy for a failure on the part of the LEA, but rather as a means to mitigate the impact of the loss of critical skills or learning that might have occurred as a result of special education and related services that could not be provided during the pandemic.”  Consequently, TEA advises ARD committees to make individualized decisions regarding each student’s need for compensatory services.  This requires a review of data regarding past and current needs to determine whether, and/or to what extent, a student may have lost progress. If the data shows that a student has not lost progress, or that a minimal loss can be made up in a short time, TEA advises that the “ARD committee might determine that the student does not need compensatory services.”

However, if the data does document lost progress, TEA’s guidance requires ARD committees to “consider and, as applicable, include in the student’s IEP the type, location, duration, and frequency of the services the student needs to make up for the lost progress.”  Importantly, TEA’s guidance expressly warns that this decision “should not be misconstrued to necessarily require an hour for hour or minute for minute makeup in services.”

Given this information, there are a few important considerations districts should keep in mind regarding compensatory services:

  • Given Due to the extent of the disruption caused by the pandemic, it is likely not a matter of “if”, but “when” a claim for compensatory services will be made.
  • Compensatory services should be construed as remedial, not as some form of punishment.
  • Compensatory services are not “one-size fits all.” By its very nature, each student with an Individualized Education Program (“IEP”) has unique needs and should be considered to have been impacted by the pandemic uniquely.
  • The process for determining compensatory services is not necessarily adversarial. Rather, the best practice is to have the ARD committee work collaboratively to determine the need for and means of providing services.

Please do not hesitate to contact the attorneys at Leasor Crass, P.C. if you have additional concerns or questions regarding compensatory services.

Filed Under: At Home Learning, Blog, COVID-19, Special Education, Students

July 28, 2020 By LeasorCrass

COVID-19 UPDATE

Below are today’s updates regarding COVID-19 and its impact on Texas public schools.  For additional resources, please visit our COVID-19 page.

Attorney General Claims Local Orders Closing Schools Are Invalid. Tarrant County Abandoning Order?
Holly James, Senior Associate

Attorney General Ken Paxton issued an opinion today regarding the legality of local public health orders that delay the start of in-person schooling, such as those entered in Dallas, Harris, Travis, and presumably Tarrant Counties.  The Attorney General opined that “nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do.”  Specifically, the AG claims that the county orders impose a quarantine on property (the school buildings), which is not authorized under the Texas Health and Safety Code without evidence that the property is contaminated or that individuals within the building are actually infected with a communicable disease.  The AG’s opinion does not address the authority of local health authorities to implement restrictions on individuals within the county.

Please click here to continue reading.

FAPE and Transportation
Rhonda Crass, Shareholder

In these ever-changing times during the pandemic, some Districts are discussing staggering students’ arrival and departure times during the 2020-21 school year to prevent the spread of COVID-19. If your District is considering this option, you should be mindful of how this may affect students with disabilities.

The law is clear that a District cannot shorten the school day for students with disabilities solely for transportation purposes.

Please click here to continue reading.

Filed Under: Blog, COVID-19, Section 504, Special Education, Students

July 28, 2020 By LeasorCrass

FAPE and Transportation

Rhonda C. Crass
by Rhonda Crass

In these ever-changing times during the pandemic, some districts are discussing staggering students’ arrival and departure times during the 2020-21 school year to prevent the spread of COVID-19. If your district is considering this option, you should be mindful of how this may affect students with disabilities.

The law is clear that a district cannot shorten the school day for students with disabilities solely for transportation purposes.  The problem is that most of the caselaw regarding shortening a student’s school day was decided long before the COVID-19 pandemic required districts to adopt new transportation safety protocols. So, should the transportation department and special education directors be worried about making sure students with disabilities do not end up with shortened school days due to modified transportation practices?

Differences in the length of the school day for students with disabilities and their nondisabled peers can amount to disability discrimination under Section 504.  While the Centers for Disease Control and Prevention recommends that staggering arrival and departure times may be the best option for some districts, districts need to be aware of how such an arrangement might affect a student’s right to FAPE if students with disabilities do not receive instruction or necessary services because of a shortened school day.   If the school is staggering its entire schedule because of social distancing or transportation needs, and the students with disabilities get all of their services, just on a different schedule, this might not open the door to compensatory education.

If you have any questions about this or any other matter, please feel free to contact any of the attorneys at Leasor Crass.

 

Filed Under: Blog, COVID-19, Section 504, Special Education

July 28, 2020 By LeasorCrass

Attorney General Claims Local Orders Closing Schools Are Invalid. Tarrant County Abandoning Order?

by Holly James

Attorney General Ken Paxton issued an opinion today regarding the legality of local public health orders that delay the start of in-person schooling, such as those entered in Dallas, Harris, Travis, and presumably Tarrant Counties.  The Attorney General opined that “nothing in the law gives health authorities the power to indiscriminately close schools—public or private—as these local orders claim to do.”  Specifically, the AG claims that the county orders impose a quarantine on property (the school buildings), which is not authorized under the Texas Health and Safety Code without evidence that the property is contaminated or that individuals within the building are actually infected with a communicable disease.  The AG’s opinion does not address the authority of local health authorities to implement restrictions on individuals within the county.

The AG further opines that because conditions related to the COVID-19 pandemic are present throughout the affected counties, not just the schools, the local public health authorities cannot impose restrictions that only affect schools.   The AG also claims that Governor Abbott’s Executive Order GA-28 allows schools to operate subject only to TEA’s guidelines, and that GA-28 supersedes any conflicting local order.

Interestingly, while the opinion declares that local health authorities cannot issue blanket orders closing schools in their jurisdiction on a prophylactic basis, it also notes that “[t]he decision to close schools on such a preventative basis—whether public or private—remains with school system leaders who should consult with relevant public health authorities, including the Department and local health authorities.”

What does this mean for school districts?  Nothing for the moment.  The Attorney General’s opinion is not a binding document.  It does not overturn the county orders currently in place, so districts subject to those orders still need to comply with them as long as they remain in effect.  Practically speaking, the AG’s opinion may prompt local health authorities to rescind their orders if they believe the AG is correct or could lead to the filing of lawsuits against local health agencies to overturn the orders.  It could also prompt Governor Abbott to issue an executive order superseding those county orders.  For now, school districts should operate in compliance with their local county orders, but be prepared to pivot as needed if the orders get overturned or rescinded.  This, we know, is an exercise districts have been engaged in for many months, as orders and guidance from the state are issued, changed, and changed again.  We wish we had the ability to stop the cycle and give you certainty.  Unfortunately, all the AG’s opinion did today was put more uncertainty on the plates of school districts, which will remain until a court weighs in on the debate.

**Update: According to the Fort Worth Star Telegram, Tarrant County is abandoning its order requiring schools to remain closed until September 28th in light of the Attorney General’s opinion issued today.  As of the time of this writing, we have not been able to locate an official statement or other confirmation from Tarrant County regarding this decision and the status of its order.  If this report is accurate, then school districts in Tarrant County should follow TEA’s guidance regarding the timeline for reopening schools.

Filed Under: Blog, COVID-19, Students

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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 … Read More

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 … Read More

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