We have reviewed the legislative changes from the spring 2017 session of the Connecticut General Assembly. The attached update includes a description of the legislative changes applicable to Connecticut boards of education.
Last week, on March 22, 2017, the United States Supreme Court issued a unanimous ruling in an IDEA case on appeal from the Court of Appeals for the Tenth Circuit, which covers six states in the interior western U.S. In Endrew F. v. Douglas County School District, Docket No. 15-827, the Court reversed the judgment of the Tenth Circuit because that court had utilized an inappropriate standard for determining whether a district’s IEP for a student offered a free appropriate public education (“FAPE”).
Endrew F. marks the first time in 35 years that the Supreme Court has addressed the meaning of the FAPE standard in the IDEA. In 1982, in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-07 (1982), the Supreme Court declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the [IDEA].” But the Court did establish that the FAPE standard under the IDEA requires that each student’s IEP be "reasonably calculated to enable the child to receive educational benefits." In the years between the Court’s decision in Rowley and its decision in Endrew F., the Supreme Court left the matter of the further interpretation of what level of educational benefits are necessary to demonstrate FAPE to the Courts of Appeal located throughout the country.
Most Connecticut school districts do an excellent job of providing certified staff members with professional development concerning the legal issues that they must understand in order to do their jobs. Many districts have also begun to provide such training opportunities for paraprofessionals, as well. However, it is also important to train school coaching staff in a number of areas.
First, the outcome of a recent complaint filed with the Family Policy Compliance Office (“FPCO”), responsible for administering the Family Educational Rights Privacy Act (“FERPA”), indicates the importance of providing coaches training in student and parent privacy rights under FERPA. In Letter to Jenkins, (FPCO, 2016) the parents of a student athlete filed a complaint with FPCO after a high school athletic coach provided one student-athlete with a medical report on another student-athlete without the parent’s signed authorization. The evidence showed that the student who had received the report about her team mate delivered it to the team mate four days later, without having read it. FPCO indicated that the coach’s providing the student with a team mate’s medical examination results constituted a FERPA violation regardless of whether or not the student had read the report. However, FPCO closed the complaint after the district provided evidence that it had "informed [the coach] verbally and in [an] email of the requirements of FERPA as it relates to the matters in the complaint." This result indicates the importance of both providing notice and/or training to coaches about the rules governing student records to coaches and retaining evidence of the training/notice.
With the Trump Administration’s changes in the execution of the enforcement of federal immigration laws, some local school districts may encounter questions and concerns from community members, and perhaps particularly from taxpayer groups, about the presence of immigrant students in their local public schools. We thought a review of the legal issues surrounding both legal and illegal immigrant students would provide assistance to our clients in responding to these concerns.
The leading case in this area is Plyler v. Doe, 457 U.S. 202 (1982). In Plyler, the Supreme Court held that undocumented immigrant children of school age who reside in a local school district have the right to attend that district’s schools on the same basis and under the same conditions as any other resident student. The Court in Plyler specifically forbid school districts from taking any of the following actions: (1) denying admission to a student during initial enrollment or at any other time on the basis of undocumented status; (2) treating an immigrant student differently from non-immigrants in making a residency determination; (3) engaging in any practices to "chill" the student and/or parent from asserting their right of access to school; (4) requiring students or parents to disclose or document their immigration status; (5) making inquiries of students or parents that may expose their undocumented status; or (6) requiring social security numbers from all students, as this may expose undocumented status. Because the Court in Plyler held that documented and undocumented immigrant children have a constitutional right to attend their local schools, neither a presidential executive order nor legislative action by Congress can alter or diminish these rights.
While the current news cycle has focused on the decision of the Trump administration to reverse the Obama Justice and Education Department’s May 2016 guidance regarding which bathrooms, locker rooms, and other facilities transgender students are entitled to use, it is just as important to remember the other component of the Trump Justice and Education Departments in this area: leaving the matter to the states.
Connecticut law already provides rights for transgender students in school facilities that are as least as broad as those set forth by the Department of Education, Office of Civil Rights under the Obama administration. Thus, this week’s change at the federal level will make no difference to the rights of transgender students in Connecticut. Additionally, while the guidance is off the books, at least for now, 15 years of federal case law indicating that Title IX protects transgender students remains firmly in place. For these reasons, school districts in Connecticut must continue to protect the rights of transgender students to equal access to school activities, programs and facilities.
Because Connecticut law forbids discrimination on the basis of gender identity, boards of education in Connecticut must not discriminate against transgender students, and the withdrawal of the guidance at the federal level is irrelevant. Just as this post was being written, Governor Malloy issued Executive Order #56 reaffirming that public school bathrooms and locker rooms are public accommodations and discrimination based on gender identity shall be prohibited in such places. In addition, Governor Malloy and Commissioner of Education Wenzell issued state guidance yesterday reaffirming Connecticut’s commitment to equal rights and access for transgender students. Pending issuance of further guidance from the State Department of Education, school boards are advised to refer to the May 2016 federal guidance.
This summer a number of prominent news organizations, including the Washington Post, the New York Times, and even the United Kingdom’s The Guardian caused a stir when they featured stories about a group called “the Satanic Temple” seeking space in public elementary schools for afterschool activities. The Satanic Temple is not, in fact, planning on teaching children about devil worship - its members do not believe in the existence of any supernatural being. Rather, the group intends to promote “scientific rationality” at its afterschool meetings and events. Nevertheless, Chinni & Meuser LLC thought that this news item provided a good opportunity to remind districts about the rules governing use of school facilities by non-school groups outside of regular school hours.
The Satanic Temple has indicated that it is seeking access to elementary school facilities during after school hours to counter what it perceives as religious indoctrination by an organization called “the Good News Club.” The U.S. Supreme Court held in Good News Club v. Milford Central School, 533 U.S. 98 (2001) that the use of school space by a private religious group unaffiliated with the public school outside of school hours did not violate the Establishment Clause of the First Amendment. The Court also held that banning the Good News Club from utilizing public elementary school facilities based upon the religious content of the Club’s message amounted to unconstitutional view point discrimination, in violation of the Club’s First Amendment rights.
We have reviewed the legislative changes from the spring 2016 session of the Connecticut General Assembly. The attached update includes a description of the legislative changes applicable to Connecticut boards of education.
Most boards of education in Connecticut allow some form of public comment at some or all of their meetings. The applicable board policies vary widely in scope. Some limit public comment to a set, short period of time. Some require that any public comment be addressed to an item on the board’s agenda for the meeting in question. Some have no restrictions on public comment at all. For all boards of education in Connecticut, a recent federal district court decision from Georgia serves as a useful refresher on what sorts of restrictions on public comment during regular and/or special meetings will run afoul of the First Amendment.
In Barrett v. Walker County School District, (N.D. Georgia, April 4, 2016), the U.S. District Court issued a permanent injunction against the school board, forbidding it from enforcing certain aspects of its policy concerning public comment at board meetings. Mr. Barrett, a social studies teacher and president of the Walker County Association of Educators, wanted to complain at a board meeting about a change in grading policies that the superintendent had instituted unilaterally. The board denied Mr. Barrett’s request to speak, asserting that, under the board’s policy about public comment, since Mr. Barrett’s complaint concerned an employee, i.e., the superintendent, it was not an appropriate topic for public comment. The provision of the policy the board relied on to deny Mr. Barrett’s request read as follows: “The Board will not hear complaints against employees of the Board except for in the manner provided for elsewhere in Board policies, procedures, and Georgia law.”
On May 13, 2016 the U.S. Department of Education and the U.S. Department of Justice issued a joint Dear Colleague Letter regarding transgender student rights. Both agencies characterize the letter as a significant guidance document.
The phrase "significant guidance document" refers to agency documents that may reasonably be anticipated to “(i) Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; or (ii) Crete a serious inconsistency or otherwise interfere with an action taken or planned by another agency; or (iii) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (iv) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866, as further amended.” 72. Fed. Reg. 3432, 3434 (January 25, 2007)
The Dear Colleague Letter provides detailed guidance regarding a school district's obligations under Title IX to protect the civil rights of transgender students, and explains how the U.S. Department of Education and the U.S. Department of Justice evaluate a school’s compliance with these obligations.
In the May 13, 2016 Dear Colleague Letter, the U.S. Department of Education and the U.S. Department of Justice also expressly reference a document produced by the Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students, which highlights adopted policies from across the U.S. that are designed to provide transgender students with a supportive and nondiscriminatory school environment.
As we indicated in our previous blog entry about transgender student rights, the federal government is moving much more quickly in this area than are the states, and in the opposite direction from some states, especially in the south. Now the United States Court of Appeals, which includes West Virginia, Virginia, Maryland, North Carolina, and South Carolina, has weighed in on a Virginia case.
In G.G. v. Gloucester County School Board, Case No. 15-2046 (4th Cir 2016) the 4th Circuit ruled, consistent with the approach taken by OCR in previous matters, that Title IX’s prohibition against discrimination on the basis of gender applies to discriminated against transgender individuals. In G.G., a transgender boy attending a public high school in Virginia sought to use the boy’s restroom. Although the high school administration at first granted his request, the local school board subsequently passed a policy requiring students to utilize the restroom that corresponded to their gender at birth. After the school board passed the new policy, they also created several single “unisex” bathrooms, available to all students.
Christine Chinni and Craig Meuser provide the following updates on state and national education and labor law matters of interest to Connecticut school district professionals and board of education members.