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The United States Department of Health and Human Services (“HHS”) has made opioid overdoses a priority.  HHS initiatives include educating doctors about being more careful in prescribing painkillers.  The Alabama Department of Education and Department of Public Health took that one step further and recently announced a new educational program designed to reduce deaths caused by opioids.  The new, statewide program will provide Alabama high schools with access to Naloxone, the opioid-overdose reversal drug.  This program is the first in the United States to train school administrators, coaches, and teachers in how to use this life-saving drug.  Prior to this program, only nurses could administer Naloxone in Alabama schools.  The Naloxone supplied to schools under this program, which costs approximately $178 per dose, was paid for by a grant, not taxpayer funds.

More than 400 opioid-related overdose deaths were reported in Alabama in 2017.  Alabama high schools hope to lower this number because of this program.  The Naloxone is not solely available to students, but can be used for anyone who comes to the high school campuses for events.

What This Means for You: Preparation and training are crucial in recognizing the signs of an opioid overdose and administering Naloxone timely and effectively.  Although the first of its kind, this program in Alabama may begin a trend in other states and/or school districts across the country to consider developing programs similar to the Alabama program.

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In February 2019, the U.S. Department of Education released new Family Educational Rights and Privacy Act (“FERPA”) guidance about schools’ and school districts’ responsibilities under FERPA relating to disclosures of student information to school resource officers, law enforcement units, and other stakeholders to explain and clarify how FERPA protects student privacy while ensuring the health and safety of all in the school community.  See: https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf.

FERPA permits schools and districts to disclose education records (and the personally identifiable information (“PII”) contained in those records) without consent if the “school officials” have “legitimate educational interests” in the education records.  Each school or school district must include in its annual notification what constitutes a “school official” and what constitutes a “legitimate educational interest.”  Law enforcement who are employees of a school or district, would typically be considered a “school official.”  Law enforcement that are off-duty police officers or school resource officers would typically be considered a “school official” if they fall into four specific categories.  The categories include performing an institutional service or function for which the school or district would  otherwise use employees, are under the “direct control” of the school or district with respect to the use and maintenance of the education records, are subject to FERPA’s use and re-disclosure requirements in 34 CFR § 99.33(a) allowing PII from education records to be used only for the purposes for which the disclosure was made (e.g., to promote school safety and the physical security of students) and limits the re-disclosure of PII from education records, and meets the criteria specified in the school or district’s annual notification of FERPA rights for being school officials with legitimate educational interests in the education records.

Additionally, FERPA health and safety emergency provision allows for a student’s education records (and the PII contained in the records) toPublic Publicbe disclosed, without appropriate consent, to appropriate parties in order to address a specific and articulable threat of a health or safety emergency.  An appropriate party is defined under FERPA as a party whose knowledge of such information is necessary to protect the health or safety of students or other persons.  The emergency must be significant and articulable, like an impending natural disaster, a terrorist attack, a campus threat, or the outbreak of an epidemic disease.  The exception is limited to the period of the emergency and does not allow for a blanket release of PII from a student’s education records.

Under FERPA, “law enforcement unit” means any individual, office, department, division, or other component of a school or district, like police officers or security guards, that are authorized or designated by the school or district to (1) enforce any local, State, or federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or federal law, against any individual or organization other than the agency or institution itself; or (2) maintain the physical security and safety of the agency or institution.  There are several categories of records that an educational agency or institution may maintain that are not “education records” under FERPA, including records of a “law enforcement unit.”    These law enforcement unit records are records that are (1) created by a law enforcement unit; (2) created for a law enforcement purpose; and (3) maintained by the law enforcement unit.  Because of this, these records may be disclosed without the parent or eligible student’s consent to outside parties under FERPA.

What This Means for School Districts: The landscape of federal and state laws is ever evolving, especially in regards to school safety.  School districts are advised to keep law enforcement unit records separately from education records.  Additionally, having law enforcement unit officials who are “school officials” with “legitimate educational interests” will allow a school to disclose PII from a student’s educational record, without appropriate consent, to its law enforcement unit officials so that they may perform their professional duties and assist with school safety matters.  For specific questions about your district’s record keeping policies, please contact your Husch Blackwell education attorney.  For more specific information about school safety, please register for the free Husch Blackwell LLP School Safety Symposium on April 12, 2019 in Kansas City, MO.  For additional information and registration information, please visit https://www.huschblackwell.com/schoolsafety2019.

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On February 26, 2019, the Supreme Court of Missouri issued an en banc opinion in R.M.A. v. Blue Springs Sch. Dist., No. SC96683.  The court held that a transgender student who was barred from using the boys’ locker room had stated a valid cause of action for sex discrimination in violation of the Missouri Human Rights Act (“MHRA”).

R.M.A., a female to male transgender student, attended school in Blue Springs R-IV School District (“BSSD”).  R.M.A. filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) in October 2014 alleging discrimination in a public accommodation based on sex.  R.M.A. alleged that he lives as a male, has changed his legal name to a traditionally male name, and presents himself as male to all faculty, staff, and other students in the School District.  R.M.A. alleged that BBSD had permitted him to participate in boys’ physical education class, boys’ football, and boys’ track, but that he had not been permitted to use the boys’ locker room or bathroom based on his sex and gender identity.

In July 2015, the MCHR issued a notice of right to sue, terminating its administrative proceedings.  In October 2015, R.M.A. filed suit against BSSD alleging discrimination in the use of a public accommodation in violation of section 213.010 et seq. “on the grounds of his sex.” Specifically, R.M.A.’s petition alleged BSSD’s exclusion of him from the boys’ restrooms and locker rooms subjected him “to different requirements for accessing the services of the school because of his sex.”  The Circuit Court of Jackson County dismissed R.M.A.’s suit.  The Missouri Court of Appeals for the Western District affirmed the Circuit Court’s dismissal.  The Court of Appeals held that MHRA does not extend its protections to claims based on gender identity.  It rejected sex stereotyping as a valid theory under MHRA.

The Supreme Court of Missouri found that R.M.A. had stated a valid cause of action for sex discrimination in violation of the MHRA.  The three elements of a MHRA claim are (1) the plaintiff is member of a class protected by section 213.065; (2) the plaintiff was discriminated against in the use of a public accommodation; and (3) plaintiff’s status as a member of a protected class was a contributing factor in that discrimination.  Missouri statute 213.065 protects individuals from discrimination or segregation “because of race, color, religion, national origin, sex, ancestry, or disability.”  Missouri defines a public accommodation as “places or businesses offering or holding out to the general public, goods, services, privileges, facilities, advantages or accommodations for the peace, comfort, health, welfare and safety of the general public or such public places providing food, shelter, recreation, and amusement.”  R.S.Mo. § 213.010 (15).  The Supreme Court of Missouri found that R.M.A. successfully pled a cause of action under the MHRA by stating that he was denied full and equal access to the male restroom and locker rooms by defendants and that his membership in the “male protected class” was a contributing factor in the denial.  The case is now remanded back to the Circuit Court of Jackson County.

What this means for K-12 schools:  This case does not expressly expand the protections of the MHRA to include sexual orientation or gender identity as recognized forms of sex discrimination.  Thus, while no immediate changes are required, school boards are encouraged to ensure school policies foster a safe learning environment for students.

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Following the school shootings at Marjory Stoneman and Santa Fe High Schools, President Trump established an executive Commission on School Safety. The Commission’s members were Betsy DeVos, U.S. Secretary of Education, Kirstjen Nelson, Secretary of Homeland Security, Alex Azar II, Secretary of Health and Human Services, and Matthew Whitaker, Acting Attorney General. The Commission was charged with producing policy recommendations in an effort to help prevent future tragedies. After conducting field visits, listening sessions, and meeting with state and local leaders, the Commission issued a report calling for, among other things, “more threads of love, empathy, and connection” in our country’s “moral fabric.”

The report covers a host of school safety topics, including proposed best practices for improving school climate, increasing access to school-based mental health services, coordinating with the media in reporting safety breaches, and school discipline. The report also recommends improving and increasing school safety training, including modules on active shooter preparedness.

Perhaps most controversially, the commission’s recommendations include the suggestion that the U.S. Department of Education rescind the Obama Administration’s school discipline guidance.  That recommendation was carried out immediately on December 21, 2018. The Commission reasoned that state and local districts should “play the primary role in establishing educational policy, including how to handle specific instances of student misconduct and discipline.” The report also expressed doubt as to “the underlying premise that African-American students are overrepresented in disciplinary matters due to racial discrimination,” citing a study that concluded “the racial gap in suspension was completely accounted for by a measure of the prior problem behavior of the student.”

The Report also examined the “Efficacy of Age Restrictions for Firearm Purposes,” and found that “research does not support the conclusion that age restrictions for firearms purchases are effective in reducing homicides, suicides, or unintentional deaths.” Rather, the report encouraged states to “offer[] training or other resources to promote safe storage of firearms,” since “[m]ost school shooters obtain their weapons from family members or friends rather than by purchasing them.”

Other recommendations included “collaborat[ing] with parents to strengthen internet safety measures to curb access to inappropriate content,” implementing community-based programs such as “If You See Something, Say Something” to encourage and facilitate “the reporting of suspicious activities or other concerning behaviors,” and instituting “character education” curriculum and programming to “help students feel connected to, rather than isolated from, teachers and fellow students.”

As the report makes clear, school leaders are faced with the difficult task of forging a path forward that accounts for the complicated legal, political, and social dynamics issues of our time. Understanding this reality, Husch Blackwell is pleased to offer a free half-day School Safety Symposium to superintendents and school board members. The Symposium aims to promote the safety of our schools through an open discussion and thought leadership. To register, please click here.

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On the one year anniversary of the lives lost in the Parkland, Florida school shooting, our thoughts go out to the families, friends and all those impacted by last year’s tragedy. School safety is a top priority and Husch Blackwell’s Education team is hosting a School Safety Symposium featuring guest speaker Jeff Lanza, former FBI agent, who specializes in threat responses and assessment. Learn more and register here: https://lnkd.in/eWwjiH7

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On January 7, 2019, the Supreme Court of the United States denied certiorari in Ferguson-Florissant School District v. Missouri Conference of NAACP.  This case involves the Ferguson-Florissant School District (“FFSD”), a St. Louis area school district created after a 1975 desegregation order required the original FFSD to annex two neighboring school districts “to achieve a meaningful desegregation” within one unified district. United States v. Missouri, 515 F.2d 1365, 1366 (8th Cir. 1975) (en banc).

This lawsuit challenged FFSD’s method of electing school board members. The suit alleged that the at-large, popular vote, system, in which people only vote once for a candidate, was racially biased against African-American candidates.  This lawsuit was originally filed in 2014, when six of the seven school board members were Caucasian, even though about four-fifths of FFSD’s student population was African-American and approximately fifty percent of its voting age population was African-American.

The plaintiffs sued FFSD for vote dilution under section 2 of the Voting Rights Act of 1965. Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership.  To establish a Section 2 claim, the plaintiffs must show, among other things, that members of a racial minority “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” See 52 U.S.C. § 10301.

After a six-day bench trial, the trial court found that (1) the NAACP had proved the preconditions for a section 2 claim and (2) the totality of the circumstances indicated that the district’s African-American voters had less opportunity to elect their preferred candidate than other members of the electorate.  In July 2018, the U.S. Court of Appeals for the Eighth Circuit affirmed the trial court’s findings that the at-large electoral process used by FFSD unlawfully diluted the voting power of the district’s African-American residents.  The Supreme Court’s decision to deny certiorari leaves this ruling in place.

What This Means for K-12 Schools

Because of the Supreme Court’s decision not to review the Eighth Circuit’s ruling in this case, the trial court’s finding that FFSD’s at-large election method violates the federal Voting Rights Act remains in place.  Therefore, FFSD’s election procedures will have to be changed by the April 3, 2019 election.  This decision is reminder that school districts should ensure that their election methods are non-discriminatory.  For questions about your school district’s compliance, please contact your Husch Blackwell education attorney.

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The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking[1] to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. Comments to the proposed regulation are due on or before January 30, 2019. Here are ten notice requirements the proposed regulation would impose on elementary and secondary schools if they become final.

  1. Notice of a Formal Complaint (Section 106.45(b)(2))

“Upon receipt of a formal complaint,” a school must provide written notice to the parties of the recipient’s grievance procedures and of the allegations. This notice:

  • must include sufficient details (such as the identities of the parties involved in the incident, if known, the specific section of the recipient’s policy allegedly violated, the conduct allegedly constituting sexual harassment under this part and under the recipient’s policy, and the date and location of the alleged incident, if known) and provide sufficient time to prepare a response before any initial interview;
  • must also include a statement that the respondent is “presumed not responsible” for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
  • must inform the parties that they may request to inspect and review evidence under section 106.45(b)(3)(viii); and
  • must inform the parties of any provision in the recipient’s code of conduct that “prohibits knowingly making false statements or knowingly submitting false information during the grievance process.”
  1. New Allegations

If the school later decides to investigate allegations not included in the initial complaint, the recipient must provide notice of the additional allegations to known parties. The Department’s reasoning for this requirement is “to keep the parties meaningfully informed of any expansion in the scope of the investigation.”

  1. Emergency Removal of Respondent

If a school chooses “to remove a respondent from the education program or activity on an emergency basis,” the school must provide “notice and an opportunity to challenge the decision immediately following the removal.”

  1. Extension of Investigation

A school must provide notice to the parties of “delay or extension of grievance process” that must include “reasons for the action.” Any extension of the investigation must be for “good cause.”

  1. Notice of Hearings, Investigative Interviews, or other Meetings with a Party

Under proposed section 106.45(b)(3), a school “must provide written notice to the party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.” The Department’s rationale is to “ensure that the complainant and respondent are able to meaningfully participate in the process and that any witnesses have adequate time to prepare.” The Department believes that “[w]ithout this protection, a party’s ability to participate in a hearing, interview, or meeting might not be meaningful or add any value to the proceeding,” and specifically noted that this proposed provision “is equally important at the elementary and secondary education level and the postsecondary education level to ensure that both parties are treated equitably.” This proposed provision is similar to the Clery Act regulation at 34 CFR 688.46(k)(3)(i)(B).

  1. Written determination of Responsibility

Proposed section 106.45(b)(4)(i) would require recipients to issue a written determination regarding responsibility. The regulation would require the notice of determination to include the following elements:

  • the sections of the recipient’s code of conduct alleged to have been violated;
  • the procedural steps taken from the receipt of the complaint through the determination;
  • findings of fact supporting the determination;
  • conclusions regarding the application of the recipient’s policy to the facts;
  • a statement of, and the recipient’s rationale for, the result, including a determination regarding responsibility;
  • any sanctions the recipient imposes on the respondent;
  • and information regarding the appeals process and the recipient’s procedures and permissible bases for the complainant and respondent to appeal.

The regulation further requires that the written determination “contain a statement of, and rationale for, the result, including any sanctions imposed by the recipient and any remedy given to the complainant.” Importantly, the school “must provide notice of findings simultaneously to both parties/representatives.”

  1. Appeals
  • As to all appeals, the recipient must notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties
  • Must also issue a written decision describing the result of the appeal and the rational for the result and provide the written decision simultaneously to both parties
  1. Informal Resolution

The proposed regulation would continue to allow schools to engage in informal resolution (such as mediation), but under proposed section 106.45(b)(6) the school must provide the parties with written notice disclosing:

  • the allegations;
  • the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, if any; and
  • any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

The regulation would only permit informal resolution is when all parties agree in writing.

  1. Nondiscrimination

Separate from notifications within the grievance process, the proposed regulation would also require schools to notify certain individuals “that it does not discriminate on the basis of sex in the education program or activity which it operates.” This requirement would apply to “applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral for applicants for admission and employment, and unions or professional organizations holding collective bargaining agreements or professional agreements with the recipient.”

Further, notice under this proposed section must state that inquiries about the application of Title IX may be referred to the school’s Title IX coordinator, or to the Assistant Secretary of the Department of Education. Proposed section 106.8(b)(2) requires recipients to “prominently display their Title IX nondiscrimination policy on their website and in each handbook or catalog” that it makes publically available.

  1. Title IX Contacts & Grievance Procedures

Proposed section 106.8(c) would also require schools to provide notice of their grievance procedures to students and employees. The required notice must include “the electronic mail address of the employee or employees designated as Title IX Coordinators, in addition to providing the coordinator’s office address and phone number.”

Alternatively, a school could provide “a title with an established method of contacting the coordinator that does not change as the identity of the coordinator changes,” such as a static/generic email address (e.g., TitleIXCoordinator@school.org). The Department specifically solicits comments “on whether larger institutions of higher education should have a minimum number of individuals with whom individuals can file a complaint of sex discrimination.”

[1] Proposed Rule, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106).

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The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. As the Department has acknowledged, the proposed rules would adopt standards that significantly depart from those set forth in prior ED regulations and guidance under Title IX. Although much of the debate regarding the proposed rules has focused on institutions of higher education’s treatment of sexual harassment, the proposed rules also would significantly impact elementary and secondary schools. Husch Blackwell’s education team offers the following overview of the proposed rules, with a focus on the Department’s regulation of K-12 institutions.

1. Sexual Harassment Defined

In the era of #MeToo, defining conduct that constitutes sexual harassment under Title IX has been the subject of intense debate within the Department, the courts, and the public at large. Proposed section 106.44(a) would require a school with “actual knowledge of sexual harassment” in its “education program or activity” to “respond in a manner that is not deliberately indifferent.” The Department’s definition of “sexual harassment” means a school:

(1) “conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;”

(2) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;” or

(3) “sexual assault as defined in 34 CFR 668.46(a), implementing the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act).”

Departing from previous administrative guidance, the proposed regulation makes constructive notice insufficient to trigger an institution’s Title IX obligations. For purposes of administrative enforcement, the proposed regulation adopts the Supreme Court’s deliberate indifference standard from Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).  This standard, significantly higher than ED’s enforcement standard, has been used by courts to determine institutional liability for the payment of monetary damages to the victim of sexual harassment. Tracking the judicial standard, the proposed rules define “deliberate indifference” as a response that is “clearly unreasonable in light of the known circumstances.” “Actual knowledge” is defined as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient.”

The federal courts have held that determining whether someone is an official with authority to take corrective action is a fact-specific inquiry. Although the U.S. Supreme Court has not specifically ruled on the issue, the proposed rules state that “a teacher in the elementary and secondary context” is such an official “with regard to student-on-student harassment.” The Department reasoned that “school administrators and teachers are more likely to act in loco parentis, and exercise a considerable degree of control and supervision over their students” in elementary and secondary school settings. Thus, the Department believes that teachers at elementary and secondary schools should be considered to have the requisite authority to impart actual knowledge to the recipient regarding student-on-student conduct that could constitute sexual harassment and to trigger a recipient’s obligations under Title IX.

In addition, notice to a recipient’s Title IX Coordinator will always confer actual knowledge on the recipient. However, the Department states that “the mere ability or obligation to report sexual harassment does not necessarily qualify an employee, even if that employee is an official, as one who has authority to institute corrective measures on behalf of the recipient.” Similarly, a school does not have actual notice if the “official” with knowledge of the harassment is the perpetrator.

2. Grievance Procedures for Addressing Complaints of Sexual Harassment

The Department has expressed its desire to ensure schools have the “flexibility to employ age-appropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved” in determining how to respond to sexual harassment. Along those same lines, the Department “believes that teachers and local school leaders with unique knowledge of the school culture and student body are best positioned to make disciplinary decisions; thus, unless the recipient’s response to sexual harassment is clearly unreasonable in light of known circumstances, the Department will not second guess such decisions.”

Despite these admonitions, the proposed rules outline a revised, but nevertheless detailed set of grievance procedures for notifying, investigating, and issuing a decision regarding allegations of sexual harassment. Under the proposed rules, an institution’s grievance procedures must include the following elements:

  • “Treat complainants and respondents equitably” by designing remedies that (1) “restore or preserve access to” a complainant’s education program or activity “where a finding of responsibility against the respondent has been made,” and (2) afford “due process protections for the respondent before any disciplinary sanctions are imposed.”
  • Provide for an “investigation” which objectively evaluates “all relevant evidence – including both inculpatory and exculpatory evidence,” and must provide that “credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.” This appears, for example, to preclude any reasoning that a complainant’s account is more likely true than not because there are very few “false” sexual assault reports.
  • Ensure that individuals participating in the grievance process are selected and trained to serve impartially with no “conflict of interest,” “bias for or against complainants or respondents generally or an individual complainant or respondent,” or reliance on “sex stereotypes.”
  • Presume that the respondent is not responsible for the alleged conduct “until a determination regarding responsibility is made at the conclusion of the grievance process.”
  • Complete with grievance process in a “reasonably prompt timeframe,” which can be extended based on absences of witnesses, “concurrent law enforcement activity,” or the need to accommodate individuals with disabilities. This appears to give a school greater flexibility to delay an investigation in deference to a law enforcement investigation than did the prior sub-regulatory guidance.
  • Describe the possible sanctions and remedies that the recipient may implement following any determination of responsibility.
  • Describe the standard of evidence to be used to determine responsibility.
  • Establish procedures for the complainant and respondent to appeal, if an appeal is permitted.
  • Describe “supportive measures” available to complainants and respondents.

Significantly for elementary and secondary schools, the regulations would grant elementary and secondary schools “the discretion to look to state law and local educational practice in determining whether the rights of the party shall be exercised by the parent(s) or guardian(s) instead of or in addition to” the accused student. For example, if the parent or guardian of a minor student at an elementary or secondary school files a complaint on behalf of the student, and state law and local educational practice recognize the parent or guardian as the appropriate person to exercise that student’s legal rights, the student would be a “complainant” under the proposed regulation even though the action of filing the complaint was taken by the parent or guardian instead of the student.

In addition, the proposed regulations stipulate that nothing in the proposed rules preclude a school “from removing a respondent from the recipient’s education program or activity on an emergency basis” so long as the school “undertakes an individualized safety and risk analysis, determines that an immediate threat to the health or safety of students or employees justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.” However, the proposed regulations also caution that a school considering the removal of a respondent must “follow the requirements of the IDEA, Section 504 and Title II of the ADA.”

3. Investigation of Sexual Harassment Complaints

The regulations further specify proposed requirements that school districts must include in their investigatory processes and procedures. These requirements contain significant changes to ED’s current rules. The requirements include placing “the burden of proof and the burden of gathering evidence” on the school, prohibiting a school from restricting the “ability of either party to discuss the allegations” or “to gather and present relevant evidence,” and notice requirements for any participants in the investigation. The regulations also require schools to provide participants with “the opportunity to be accompanied . . . by the advisor of their choice.” The Department noted that the right to have an advisor, “who may be an attorney,” is “important at the elementary and secondary education level to ensure that both parties are treated equitably.”

In one of the most controversial aspect of the proposed regulations, the Department also permits—but does not require—elementary and secondary schools to conduct “a live hearing.” The Department reasoned that “[b]ecause most parties and many witnesses are minors in the elementary and secondary school context, sensitivities associated with age and developmental ability may outweigh the benefits of cross-examination at a live hearing.”

Regardless of a school’s decision to implement a live hearing component, the regulations impose an affirmative obligation for “the decision-maker” to “ask each party and any witnesses any relevant questions and follow-up questions, including those challenging credibility that a party wants asked of any party or witnesses.” Similarly, “[i]f no hearing is held, the decision-maker must afford each party the opportunity to submit written questions, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” An investigation “must exclude evidence of the complainant’s sexual behavior or predisposition, unless such evidence about the complainant’s sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent.”

4. Completing a Sexual Harassment Investigation

When the investigation is complete, a school must provide both parties “an equal opportunity to inspect and review evidence obtained as part of the investigation . . . so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.” Schools must further craft an “investigative report” that “fairly summarizes relevant evidence,” and must provide copies of the report to the parties for review and response. Significantly, the school “must apply either the preponderance of the evidence standard or the clear and convincing evidence standard.” However, a school may only utilize the “preponderance of evidence standard if the school “uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction,” and must “apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.”

The comments to the regulation require the report “issue a written determination regarding responsibility” that includes:

  • the sections of the recipient’s code of conduct alleged to have been violated;
  • the procedural steps taken from the receipt of the complaint through the determination;
  • findings of fact supporting the determination;
  • conclusions regarding the application of the recipient’s policy to the facts;
  • a statement of, and the recipient’s rationale for, the result, including a determination regarding responsibility;
  • any sanctions the recipient imposes on the respondent; and
  • information regarding the appeals process and the recipient’s procedures and permissible bases for the complainant and respondent to appeal.

The comments further articulate the Department’s belief “that the benefits of these provisions, including promoting transparency and equal treatment of the parties, are equally applicable at the elementary and secondary level.”

Finally, the regulation requires schools to notify students and parents of elementary and secondary school students “that it does not discriminate on the basis of sex in the education program or activity which it operates.” The required notice “must state that inquiries about the application of Title IX may be referred to” the school’s designated “responsible employee” or “to the Assistant Secretary.” For allegations that are dismissed, the commentary indicates a school would still be free to address such conduct under its general student conduct code, although Title IX does not require the school to do so.

5. Specific Questions Addressed to K-12 Institutions

At the conclusion of the proposed regulation, the Department indicated it is seeking additional comments on specific questions, two of which are directed specifically to public school districts and other K-12 institutions.

First, the Department explicitly states that it is considering the “[a]pplicability of the rule to elementary and secondary schools,” and seeks comments regarding:

  • whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level;
  • if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties involved and involve parents or guardians; and
  • whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider, such as systemic differences between institutions of higher education and elementary and secondary schools.

Second, the Department acknowledges that some aspects of the proposed regulation “differ in applicability between institutions of higher education and elementary and secondary schools.” Specifically, the Department cited the “safe harbor” and “cross examination” provisions applicable to institutions of higher education as important examples. Accordingly, the Department seeks comment “whether our regulations should instead differentiate the applicability of these or other provisions on the basis of whether the complainant and respondent are 18 or over, in recognition of the fact that 18-year-olds are generally considered to be adults for many legal purposes.”

What This Means for K-12 Schools

The Department’s proposed Title IX regulations will result in significant changes to Title IX compliance efforts at K-12 schools. School districts should carefully evaluate the proposed regulations and consider whether to provide comments to ED raising any concerns or suggested modifications. Comments are due on or before January 28, 2019. Under the assumption the proposed regulations may survive the comment process without significant changes, school districts should plan now for how they may need to modify their policies, practices, and procedures to align with the new regulations.

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In light of the 2017-2018 U.S. Supreme Court term ending and the 2018-2019 Supreme Court term beginning with new Justice Brett Kavanaugh, school district personnel must be mindful of the recent Supreme Court holdings and significant cases the Court may hear this term.Interested in learning more about these cases and Justice Kavanaugh?  If you are a Husch Blackwell client or a member of the Council of the Great City Schools, join us next Monday, December 10, at 2:30 Eastern Daylight Time for a complimentary continuing legal education webinar.  Click here to register.

One of the cases we will discuss is Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31.  In this case, the Supreme Court held that requiring fair-share fees in the public sector violates the First Amendment of the Constitution.  This means that government employees represented by a union, but do not belong to that union, cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees.  This decision could cripple public sector unions by reducing their resources and members and could greatly affect a union’s ability to speak as one unified voice for its members, hurting the union’s political strength and overall effectiveness.

Our webinar will discuss the potential impacts Justice Kavanaugh might have on the Supreme Court as it relates to urban education.  We will discuss Justice Kavanaugh’s path to the Supreme Court as well as his constitutional viewpoints and judicial philosophy.  In addition to this webinar, please also look to this prior blog post regarding Justice Kavanaugh and education law.

Our webinar will also discuss in detail cases pending in the lower courts.  One case we will discuss is Student for Fair Admissions v. Harvard University.  This case involves a lawsuit filed by a group of Asian students alleging that Harvard’s race conscious admissions policy is discriminatory against them.  After a three-week trial in Boston that ended on November 2, 2018, the parties’ respective versions of the salient facts and legal justifications are due December 19, 2018.  The final arguments in this case are set to take place on February 13, 2019.

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D.C. Circuit Judge Brett Kavanaugh was nominated on July 9, 2018 to the Supreme Court by President Donald Trump. Should he be confirmed, his appointment could have far reaching effects to educational entities across the country. Kavanaugh is a strong proponent of religious liberty and second amendment rights, and has issued a variety of high-profile opinions.

Kavanaugh’s Background

Kavanaugh, a former law clerk to retiring Justice Kennedy, was also an author of the Starr Report, which urged the impeachment of President Bill Clinton. After the 2000 U.S. presidential election, Kavanaugh joined President George W. Bush’s staff, where he led the administration’s effort to identify and confirm judicial nominees. In 2003, he was nominated to the Court of Appeals by President Bush. His confirmation hearings were contentious and stalled for three years before he was finally confirmed in May 2006. Judge Kavanaugh describes his judicial philosophy, saying, “A judge must be independent and must interpret the law, not make the law. A justice must interpret statutes as written and a judge must interpret the Constitution as written informed by history, and tradition, and precedent.”

Opinions

Judge Kavanaugh has one opinion involving special education. In Hester v. D.C., 505 F.3d 1283 (D.C. Cir. 2007), Judge Kavanaugh wrote the majority opinion overturning a district court’s decision granting summary judgment for a student. The Court of Appeals also directed the district court to grant defendant’s cross-motion for summary judgment. Specifically, an incarcerated special education student sued the city of Washington D.C., where he originally attended public school, alleging that the city failed to provide him free appropriate public education (“FAPE”). While the student was in a Maryland prison, Maryland provided him special education services. In his opinion, Judge Kavanaugh ultimately held that the student, a prisoner of Maryland, was not entitled to D.C.’s special education services.

Judge Kavanaugh has also authored high profile opinions involving gun control and federal grants. In Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011), he wrote a dissenting opinion, stating that he believes, under the law, semi-automatic rifles and handguns are constitutionally protected.

In addition, in Camden County Council on Econ. Opportunity v. U.S. Dept. of Health & Human Services, 586 F.3d 992 (D.C. Cir. 2009), Judge Kavanaugh wrote the majority opinion finding that the Department of Health and Human Services could terminate a county’s Head Start grant which provided federal funding for pre-school services to low-income children. In Camden, he determined that because the county failed to correct a safety-related deficiency, the Department could rightfully terminate the grant.

Judge Kavanaugh has an extensive history of supporting religious liberty. In the 1990s, he chaired the Federalist Society’s Religious Liberty practice group and served as pro bono counsel on cases defending religious freedom. While on the bench, he wrote a dissent in Priests for Life v. HHS and concluded that the Affordable Care Act’s contraceptive mandate violated the rights of religious organizations.  See Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015). School voucher advocates believe that Judge Kavanaugh could change legal precedent regarding religious school vouchers given his record on religious liberty. While there are currently no school voucher cases pending before the Supreme Court, relevant cases are moving through the lower federal courts.

Happening Now             

Judge Kavanaugh has been making “courtesy visits” in the Senate, offering senators a chance to quiz Judge Kavanaugh on his judicial philosophy, past rulings, and public statements. If confirmed, school districts can expect Judge Kavanaugh to be cautious towards federal education spending and be a strong supporter of the Second Amendment. Husch Blackwell’s Education Team will continue to monitor his confirmation process and his judicial opinions should he be confirmed and take the bench.

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