ADDITIONAL INFORMATION REGARDING
NEW FLSA REGULATIONS ON OVERTIME
As mentioned, after December 1, 2016 the new Fair Labor Standards Act overtime regulations will take effect.
With regard to teachers the regulations indicate that a “teacher” whose primary duty is teaching, tutoring, instructing or lecturing is exempt from the overtime rules. A teacher would include regular academic teachers, kindergarten or nursery school teachers, teacher of gifted or disabled children, professors, adjunct instructors, teachers of skilled and semi-skilled trades and occupations, home economics teachers, vocal or instrument music teachers, among others. However, it is conceivable that individuals, who for salary reasons were not at issue previously, such as teachers acting as department or program heads whose duties are split between teaching and administrating (and thus are not “primarily” teaching) who fail to meet the threshold salary may now be subject to the new rules. The facts and circumstances relating to each such employee should be closely examined.
With regard to salaried support staff who are making less than the new FLSA minimum salary, districts when budgeting should carefully consider the possibility that such employees could qualify for overtime pay as a result of these changes.
Finally with regard to administrators, School Districts should be looking to evaluate positions beyond simply the Principal and Superintendent. Many Districts employ IT Specialists, Public Relations Personnel, Tech Coordinators, and other salaried “executive, administrative, and professional” personnel who may now be able to qualify for overtime on account of the salary being paid to them.
The examples provided herein are not an exhaustive list of considerations but merely intended as additional guidance should Schools elect to reexamine their existing contracts and agreements.
Firm attorney Walt Zukowski recently addressed over 50 new teachers at a day long program sponsored by the LaSalle County Regional Office of Education. Zukowski spoke on: student free-speech rights, bullying, tenure, RIFs, evaluations, the new student discipline statute, due process procedures, special education discipline, 504 plans, DCFS investigations, new concussion protocols, search and seizure practices, protocols for dealing with sexting, and professionalism. This is the 10th year Walt has been asked to present. He is the senior attorney at Zukowski Law Offices in Peru.
Illinois Attorney General Lisa Madigan has concluded City leaders in downstate Bloomington violated the State’s Open Meetings Act in discussing potential litigation in Closed Session when litigation was not probable or imminent.
In the Opinion, Madigan recommended the “imminent litigation” exception to the OMA be limited in its scope so as not to allow governmental bodies to exploit that provision by holding meetings in secret when they should be open to the public.
The Bloomington City Council was accused in June of violating the OMA by going into Closed Session to consider terminating an Intergovernmental Agreement with the town of Normal. The Bloomington City Council made a finding that litigation in the matter was probable and then went into Closed Session to discuss it.
A section of the OMA states that a body may go into Closed Session when a legal action against it has been filed or when the body finds that a legal action is probable or imminent. An additional rule requires the body to disclose why a legal action is probable.
Madigan in her Opinion found that Bloomington did not have a reasonable basis for a finding that legal action from the City of Normal was probable. She said “the dispute between Bloomington and Normal had been going on for some time, and to close a meeting there must be reasonable grounds to believe a lawsuit is likely.” The Attorney General also faulted Bloomington for discussing in Closed Session a course of action concerning the Agreement with Normal, and not just possible litigation.
The Attorney General cited prior Attorney General opinions in support of the proposition that any discussion for this reason *must exclusively focus on litigation strategy and legal theories*. She emphasized that the discussion cannot be about "if we do this we're probably going to get sued". In other words it must be about the likely litigation, and must not be about the matter that might give rise to any such litigation.
The Attorney General thought that in any event Bloomington was too liberal in its construction of what constitutes "probable or imminent". Not only must it be "more likely than not", but it cannot be contingent upon future actions by the Board (which are themselves the real matters the Board wants to discuss in closed session). In other words, unless and until Bloomington voted to unilaterally terminate the IGA with Normal, nothing would've happened that would justify the inference that litigation was probable or imminent.
Over the years, I became aware that spouses of school board members occasionally are hired by the school district. The attached recent case identifies a possible problem if doing so. If your district has such an arrangement, you should analyze the situation (how to avoid such a problem, or at least deal with a similar circumstance if it were to arise). Good luck.
Veazey v. Rich Township High School District 227, 2016 IL App (1st) 151795 (July 20, 2016) Cook Co., 3d Div. (MASON) Reversed and remanded with directions.
(Court opinion corrected 9/16/16.) Plaintiff filed suit seeking declaratory judgment that a vote by School Board to reinstate employment of assistant principal of alternative programs was illegal because Board allowed assistant principal's husband and Board member to cast the tie-breaking vote in violation of District's anti-nepotism policy. Plaintiff's challenge was directed to legality of Board's vote, and not propriety of reinstatement, thus rendering Administrative Review Law inapplicable. Assuming on remand Plaintiff alleges facts showing his liability to replenish public funds used to pay assistant principal, he has standing as a taxpayer to pursue claim for declaratory relief challenging votes in violation of Board's anti-nepotism policy that resulted in expenditure of those funds. Reversed and remanded with directions to grant Plaintiff leave to amend his complaint. (PUCINSKI and LAVIN, concurring.)
Open Meetings Act | 4th Dist.
The Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois, 2017 IL 120343 (January 20, 2017) Sangamon Co. (GARMAN) Circuit court affirmed; appellate court affirmed.
(Correcting court designation.) On administrative review, circuit court reversed Attorney General's binding opinion finding violations of Open Meetings Act. School Board had met in several closed sessions to discuss possibility of entering into separation agreement with superintendent of schools. Public recital announced nature of item under consideration with sufficient detail to identify the particular transaction or issue. Board president was not required to publicly read all pages of agreement and its addenda or to enumerate key points of agreement. Public vote after public recital validly approved separation agreement. Attorney General's finding that public recital was insufficient was based on incorrect reading of Section 2(e) of Open Meetings Act. Section 2(e) does not require that recital provide explanation of terms or significance of transaction or issue. (KARMEIER, FREEMAN, THOMAS, KILBRIDE, BURKE, and THEIS, concurring.)
The Second District Appellate Court of the State of Illinois, in Hites v. Waubonsee Community College (2016 Ill.App.2d 150836 (June 6, 2016), has held that public bodies that receive requests for data on databases can be required to provide such data when requested pursuant to the Illinois Freedom Of Information Act. While public bodies are still not required to create new documents for requesters which include interpretations of data, they must provide available data stored in the database (for example: zip codes of students in particular classes in particular years) in readable formats when doing so does not present a hardship to the public body.
Another recent case evidencing the difficulty of balancing the rights of students. This could become a very important case nationally. It will be very interesting to watch as it progresses through the court system over the next several years.
Last week, while attending a school related meeting, the recent "Dear Colleague" letter, and the controversy/confusion regarding it, were discussed. I mentioned that we are only at the beginning of the efforts to clarify the terms and responsibilities under that letter, as well as litigation to have the matter delayed or set aside. It will likely take many months, if not years, to resolve the matter. The following is the latest information.
There has been tension and inconsistent treatment over the last several years as to appropriate "free speech" rights of school employees. The case below, it appears to limit free-speech rights of employees as it relates to racial comments, even if they were not intended to be derogatory. Interesting.
7TH CIRCUIT / CIVIL
Brown v. Chicago Bd. of Education,
No. 15-1857 (June 2, 2016) N.D. Ill., E. Div. Affirmed
Dist. Ct. did not err in granting defendant-school board's motion for summary judgment in section 1983 action alleging that defendant suspended plaintiff-teacher in violation of his First Amendment rights, where suspension followed incident in which plaintiff held discussion with his students about why term "nigger" should not be used in school. Under Garcetti, 574 US 410, plaintiff's discussion with his students was not protected speech since plaintiff was performing his role as teacher (as opposed to his role as "citizen") at time he made his statements. Fact that plaintiff's discussion was impromptu or was attempt to quell student misbehavior did not require different result. Dist. Ct. also did not err in granting defendant's summary judgment motion with respect to plaintiff's due process claim, since: (1) plaintiff did not raise any procedural due process claim as he was aware of charges against him and was aware of defendant's policy prohibiting teacher's use of racial epithets in front of students; and (2) fact that said policy did not distinguish between educational use of "nigger" term and use of said term as racial slur directed toward student did not make instant policy unconstitutionally vague. Fact that students heard said term under few circumstances indicating school's tacit approval, such as in activities involving literature and movies did not require different result.
Schools are frequently concerned as to their ability to search contents of student cell phones. The attached recent case summary out of California clearly demonstrates that schools do have "some" rights in this regard, and helps to clarify the type of factual situation justifying its use.
In re Rafael C., No. A143376 (Cal. Ct. App. Mar. 29, 2016)
Abstract: A three-judge panel of the Court of Appeal of California, First Appellate District, has ruled that school officials did not violate a student’s Fourth Amendment search and seizure rights when they searched his cell phone in connection with an investigation into a firearm found in the school hallway trash bin. The panel concluded, applying the test established in New Jersey v. T.L.O., 469 U.S. 325 (1985), that the search satisfied constitutional standards for searches conducted in the school environment by school officials.
The appellate panel found that the search of the cell phone was justified from its inception because there was reasonable suspicion that the student was guilty of wrongdoing. It also rejected the student’s contention that school officials, based on Riley v. California, 134 S.Ct. 2473 (2014), were required to obtain a warrant before searching the phone since T.L.O. provides an exception to the Fourth Amendment warrant and probable cause requirement
Numerous cases annually attempt to expand liability of schools for the action of employees and students. The attached case is good news for districts".
Fourth Circuit panel rules that a school district will only be liable for student-on-student disability based harassment under Section 504 if the student satisfies the Davis deliberate indifference standard
S.B. v. Board of Educ. of Harford Cnty., No. 15-1474 (4th Cir. Apr. 8, 2016)
Abstract: A U.S. Court of Appeals for the Fourth Circuit three-judge panel has unanimously ruled that a school district can only be held liable for disability based student-on-student harassment under Section 504 if it is found to be deliberately indifferent. It held that Section 504 claims seeking monetary damages for alleged peer harassment based on disability are subject to the Title IX standard set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). It concluded that a school district “will be liable for student-on-student harassment only where its ‘response . . . or lack thereof is clearly unreasonable in light of the known circumstances.’”
The panel also rejected the Section 504 retaliation claim raised by the disabled student’s parent. It concluded that there was no causal connection between the adverse action taken by the school district and the parent’s protected activity
"The attached case is another example of the importance of encouraging responsible conduct on the part of employees. We all know that schools are generally protected from liability except for "willful and wanton" misconduct. The following case is an example where that type of misconduct may have existed.”
Tort Immunity Act | 1st Dist.
Barr v. Cunningham , 2016 IL App (1st) 150437 (March 30, 2016) Cook Co., 3d Div. (LAVIN) Reversed and
(Court opinion corrected 4/7/16.) Plaintiff, age 15 at time of incident, filed personal injury complaint against school district and P.E. teacher, alleging willful and wanton misconduct for failing to provide protective eyewear during floor hockey game during high school physical education class that resulted in Plaintiff's eye injury. Plaintiff presented sufficient evidence at trial of conscious disregard for safety of students playing floor hockey. P.E. teacher was fully aware that safety goggles were available, as they were stored in same box as safety balls (used instead of hockey pucks), and P.E. teacher and Plaintiff testified they had seen ball occasionally bounce in the air. A jury could conclude that these judgment calls were willful and wanton, court erred in granting Defendants' motion for directed verdict. No evidence that P.E. teacher balanced competing interests and made a judgment call as to what solution to best serve those interests in deciding not to require students to wear goggles. Thus, Defendants were not entitled to immunity under Section 2-201 of Tort Immunity Act. (PUCINSKI, concurring; MASON, dissenting.)
Domestic Workers Receive Expanded Rights
Important new District friendly special-education case.
Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel has ruled that a prevailing party was not entitled to attorneys’ fees under the Individual with Disabilities Education Act (IDEA) for services performed after a written settlement offer was made. The panel concluded: (1) the relief obtained at the administrative hearing was not more favorable to the party than the settlement offer; and (2) the party was not “substantially justified” in rejecting the offer. It also determined the district court had not abused its discretion in reducing the attorney’s requested hourly rate. Lastly, the panel agreed with the lower court that the plaintiff was collaterally estopped from raising the issue of paralegal fees
This month, Gov. Bruce Rauner signed rules into effect in Illinois to establish a domestic workers’ “bill of rights”, which extends sexual harassment protections and minimum-wage pay, as well as a guaranteed one day off in a seven-day work week, to the domestic workforce, which includes nannies, housekeepers, and private caregivers.
It is estimated that there are about 2 million domestic workers in the United States, 93% of which are women, 1/3 of which are immigrants. Household employees, which includes maids and cooks, were not included in the labor law from the 1930s.
National advocates say they will use the Illinois model as a blueprint. The Illinois law will take effect in 2017, and can impact about 35,000 domestic workers.
Historically, qualified immunity has been provided to schools as a way to reduce liability. Courts did not want to "second-guess" the operation of schools. This encouraged individuals to not fear liability for volunteering or working on school related matters. Over the years, however, this concept has been eroded. The following recent decision is a continuation of that process.
It could result in greater liability to school districts (either directly, or through increased premiums in their insurance policies). It could result in more school districts deciding to scale back activities. It could result in schools having a more difficult time finding individuals to supervise.
Barr v. Cunningham, No. 120751, 1st Dist.
A teacher failed to provide a student with protective eyewear during a floor hockey game that resulted in an eye injury. The Appellate Court found that a jury "could" view the teacher's judgment call as to whether to require students to wear available eye goggles, with knowledge that a ball could fly above students’ waists, as willful and wanton conduct that displayed conscious disregard for students’ safety, and directed that a trial be conducted.
A federal judge in
Texas, US District Judge Amos Mazzant, issued a nationwide injunction Tuesday, temporarily blocking the new US Department of Labor overtime rule from going into effect December 1, which stems
from a lawsuit filed by more than 20 states and more than 50 businesses.
In Mazzant’s decision, he asserted that the Department of Labor cannot decide which workers are paid overtime based solely upon salary. Mazzant wrote “The Department exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.”
President Obama directed the Department of Labor to update regulations, which were last changed in 2004, defining which white-collar workers receive protection under the FLSA minimum wage and overtime standards.
To be exempt from overtime, workers are required to have executive, administrative, and professional capacity duties, be paid on salary basis, and meet a minimum salary level. Currently, the salary threshold is $455 a week, or $23,660 annually, but under the new rule, it would be $913 a week, or $47,476 annual. The Department of Labor estimates an additional 4 million workers would become eligible for overtime under this new rule.
New FLSA Overtime Rules May Impact School Districts
On May 18, 2016, United States Department of Labor (DOL) issued the final version of its much-anticipated revised overtime exemption rules. The changes, which go into effect on December 1, 2016, relate to which employees will, or will not, remain exempt from overtime payment requirements.
Under the old rules currently in effect, employees (such as teachers and administrators) must be paid a minimum salary of $455 per week, or $23,600 annually, to qualify for the executive, administrative, and professional exemptions from the Fair Labor Standards Act overtime requirements. Under the new rule, the salary level will increase to $913 per week, or $47,476 annually. Moreover, starting in 2020 and every three years thereafter, the salary level will update automatically to the fortieth percentile of full-time salaried workers. The DOL estimates that this figure will be $51,168 in 2020.
The new rule also updates the total annual compensation level above which "Highly Compensated Employees" are ineligible for overtime, regardless of other factors. The old level was $100,000 per year. The new level is $134,004 per year.
In light of the potentially immense costs of overtime, school districts and other public bodies will want to review their employment contracts, including their collective bargaining agreements, in order to avoid any surprise overtime obligations.
FOIA | 2d Dist.
Hites v. Waubonsee
Community College, 2016 IL App (2d) 150836 (June 6,
2016) Kane Co. (SPENCE) Affirmed in part and reversed in part; remanded.
(Modified upon denial of rehearing 7/13/16.) Plaintiff requested data from Defendant Community College pursuant to FOIA, seeking "raw inputs" for fields on College's student registration forms, and zip codes of students in certain classes and total numbers of students in certain classes. College responded that it did not have documents responsive to requests. Nine of Plaintiff's 13 requests were for public records under FOIA. The data in College's computer databases are "public records" under FOIA, so long as data pertain to "transaction of public business" and were prepared by or for, or were used by, received by, in possession or under control of any public body. FOIA comprehends that records will be stored and reproduced electronically. Court properly dismissed 6 requests which sought total numbers of students, because those requests would require that College create new records. (HUTCHINSON and ZENOFF, concurring.)
In my experience, this is
the only way to ensure adequate school funding (assuming there's a "dedicated" revenue stream to accompany it).
The transgender guidance issued
by the Department of Education and the enforcement efforts by the Department of Justice have caused great controversy over the last year. Attached is a summary of an important federal opinion issued
yesterday, which impacts all school districts.
It is an effort to require the federal government to comply with the appropriate procedures in adopting regulations, as well as recognizing the rights of individual states to treat this issue in a variety of ways.
I'm certain it will be appealed.
Federal District Court In Texas Issues Preliminary Injunction Halting Enforcement Of ED/DOJ’s Joint Guidance On Accommodating Transgender Students In School
State of Texas v. United States, No. 16-00054 (N.D.Tex. Aug. 21, 2016)
Abstract: A federal district court in Texas has issued a preliminary injunction barring the federal government from enforcing the U.S. Departments of Education (ED) and Justice’s (DOJ) joint guidance that interprets both Title VII and Title IX as applying to gender identity. The court also concluded that the injunction should apply nationwide.
Having concluded the plaintiffs had cleared all of the jurisdictional barriers, the district court then analyzed whether the plaintiffs had met the preliminary injunction requirement of a likelihood of success on the merits. It found:
Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).
The court next discussed whether the plaintiffs had satisfied the preliminary injunction requirement of showing a threat of irreparable harm. It pointed out that the federal government appeared to acknowledge that guidance conflicts “with Plaintiffs’ policies and practices.” As a result of that concession and the “Plaintiffs hav[ing] identified a number of statutes that conflict,” it concluded that the “Plaintiffs have sufficiently demonstrated a threat of irreparable harm.”
It found the plaintiffs’ harms outweighed those identified by the federal government.
Finally, the district court held the preliminary injunction should apply nationwide.
The United States Secretary of Education recently announced that the Department of Education was withdrawing two Obama-era guidance documents regarding responsibilities of school
districts with regard to addressing allegations of sexual misconduct. As a result, the Department of Education’s guidance on this topic is essentially the same as it had been in 2010.
Below, we review how these changes may affect School Districts.
First, the withdrawn federal guidance documentation had required schools to use the "preponderance of the evidence" standard with regard to sexual misconduct disciplinary decisions. Schools may now choose between that standard and the higher "clear and convincing" standard, so long as they use the same standard with regard to sexual misconduct cases and all other student discipline cases.
Second, while the withdrawn guidance documentation had required schools with an appeals process to allow complainants to appeal "not-guilty" determinations, schools may now choose to reserve such appeals for accused students who receive a “guilty” determination.
Third, the prior guidance documentation had been interpreted by some to discourage cross-examination of an accuser, by suggesting that schools which established a blanket right to cross-examine might violate Title IX. The new guidance allows Districts to extend the same cross-examination rights to both the accuser and accused.
Fourth, the former guidance provided that any due process protections afforded to accused students should not "unnecessarily delay" resolving the charges. The revised guidance documents include no such admonition.
It should be noted that none of the changes appear to make any current model PRESS policies legally insufficient or unenforceable. Rather the changes make it possible to adopt adjustments to certain aspects of such policies if Districts choose to do so. The new guidance documentation also indicates that additional regulations may be forthcoming. We will continue to monitor the development of any such new regulations.
New legislation: Open
A number of government bodies, of the years, have questioned the authority of a Board Member to have access to the verbatim tapes and minutes of closed sessions. The following act clarifies the Board Member's rights.
(Ives, R-Wheaton; Connelly, R-Naperville) requires public bodies to give access to verbatim recordings and minutes of closed meetings to officials filling vacancies of elected officials in public bodies. Access is to be granted in the public body's main office or official storage location in the presence of a records secretary, an administrative official of the public body, or any elected official of the public body. These records may not be recorded or removed from official storage unless the pubic body votes otherwise or so ordered by the courts.
Effective June 20, 2016
Below is a summary of a much publicized recent fourth district appellate case. It provides clarity to districts. In essence, if the "final action" is taken by the board at an open session, where the item is on the agenda, certain closed session actions will not cause the matter to violate the open meetings act.
If you have any questions, please contact me.
Open Meetings Act
Bd. of Education of Springfield School District No. 186 v. The Attorney General of Illinois, No. 12043, 4th Dist.
This case presents question as to whether trial court properly found that plaintiff-school board violated terms of Open Meetings Act when it terminated its superintendent during closed Bd. session. While Attorney General issued two binding opinions indicating that Bd. improperly took final action during closed Bd. session by signing separation agreement and failed to adequately inform public at subsequent public session about superintendent's proposed termination prior to voting to approve agreement, Appellate Ct. found that mere signing of separation agreement during closed session did not violate Act because said action did not constitute final action on said agreement, which did not occur until Bd. voted to approve agreement during subsequent public session. Ct. further found that Bd.'s agenda for subsequent public session, which stated: "Approval of a Resolution regarding the...agreement...between...[Superintendent] and Bd." provided public with sufficient notice of agreement under section 2(c) of Open Meetings Act.
Recently the Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, sent OCR Regional Directors a memorandum outlining the evaluation and investigation of complaints by transgender students.
The guidance declares that OCR offices can no longer rely on the May 2016 Dear Colleague Letter (or the predecessor 2015 private letter) concerning transgender students' rights under Title IX as a basis for resolving a complaint. Instead OCR must apply Title IX and its implementing regulations as interpreted by the federal courts in evaluating a complaint of sex discrimination.
The directive lists the following allegations as those over which OCR has continuing jurisdiction:
The document instructs field offices to evaluate separately each allegation of a complaint. Before proceeding to investigate any allegation, OCR must determine that it contains sufficient information to move forward.
A sample letter is provided for field offices to use when dismissing an allegation. The letter states that while the 2016 DCL has been withdrawn, state and local policies and practices may provide protection to transgender students.
No. 120236, 5th
This case presents question as to whether plaintiff-tenured teacher was properly terminated from her position after plaintiff violated terms of her Notice of Remedial Warning, which required her to show up and teach her class in timely manner and provide lesson plans for any substitute teacher, where hearing officer had recommended that plaintiff be given last chance agreement after finding that plaintiff had violated provisions in Notice of Remedial Warning. Appellate Court, in affirming trial court's reversal of plaintiff's termination, found that: (1) factual findings made by hearing officer were not unreasonable; (2) defendant's decision to reject hearing officer's recommendation was not sufficiently supported by defendant's amended and supplemental facts; and (3) findings used to dismiss plaintiff from her job were arbitrary, unreasonable and bore no logical nexus between her fitness to perform as teacher and misconduct that led to her dismissal. In its petition for leave to appeal, defendant argued that under 2011 Education Reform Act, it may dismiss teacher in spite of hearing officer's recommendation, and that Appellate Court improperly gave deference to hearing officer's recommendation.
The Satanic Temple is planning to introduce a new after-school program to select public elementary schools across the nation later this year, according to Education News. Doug Mesner, co-founder of the group, argues that if Christian evangelical groups are already participating in after-school programs, Satanic groups should be allowed to as well.
The group’s website notes that the “Educatin’ with Satan” program will teach children a number of concepts, including “critical reasoning, independent-thinking, fun and free thought.” The website goes on to say that while many believe the group worships the devil, this is not exactly true. The group does not teach about the literal existence of Satan, instead using the name as a symbol for rebellion against tyranny and authoritarian rule. The website adds that the group believes in science above all.
The group said that meetings of the after-school program will include a healthy snack, a reading lesson, a creative learning lesson, a science lesson, puzzle solving, and an art project. In order to make the after-school program a reality, the group said they plan to make use of the same approach used by the Child Evangelism Fellowship to ensure its Good News Club program, which focuses on lessons from the Bible, made it into schools across the country.
The Charleston Gazette-Mail reports that the American Civil Liberties Union of West Virginia (ACLU-WV) and the American Federation of Teachers (AFT) are opposing language in the Kanawha County school board’s proposed social media policy on the ground it gives school officials too much latitude to monitor individuals’ communications via electronic devices while on school property. Dinah Adkins, a co-president of the Kanawha County Education Association, said her union is concerned that the policy could be interpreted to cover personal content on the personal cellphones and computers that school employees are nevertheless asked to use for certain work situations, such as emergencies.
Jeff Martin, interim executive director of the ACLU-WV, noted that parts of the policy seem to indicate the school system would claim the right to review information on personal devices brought onto school property, even if those devices aren’t logged into the district’s internet and technology network. “You can imagine a situation where you come to a basketball game,” Martin said. “Does that mean, [for] any person attending that basketball game, the school system has a right to look through their cellphone? It has some serious implications because the language is overly broad.”
On Wednesday, February 22, 2017 the Department of Justice and the Department of Education withdrew certain statements of policy and guidance, including a “Dear Colleague” letter dated May 13, 2016, that took the position that the prohibitions on discrimination “on the basis of sex” in Title IX, require access to sex-segregated facilities based on gender identity.
This interpretation had given rise to significant litigation regarding school restrooms and locker rooms. In August of 2016, a Texas court preliminarily enjoined enforcement of the “Dear Colleague” guidance.
The Departments have now determined that there must be due regard for the primary role of the states and local school districts in establishing educational policy regarding the issue. Thus, the Department of Education and the Department of Justice have decided to withdraw and rescind the above referenced guidance documents.
In doing so the Department of Justice criticizes the previous guidance in several respects, based upon recent cases. The U.S. Court of Appeals for the Fourth Circuit concluded that the term “sex” in the regulations is ambiguous and deferred to what the court characterized as the “novel” interpretation advanced in the guidance. By contrast, a Federal District Court in Texas held that the term “sex” unambiguously refers to biological sex and that, in any event, the guidance was “legislative and substantive” and thus formal rule making should have occurred prior to the adoption of any such policy.
Thus, before future transgender guidance would be mandated, the Department of Justice would need to follow the well vetted "proper rule making procedures". In the alternative, it could fall upon Congress to consider modifying the definition of sex under Title IX. Here again, schools would have the opportunity for input.
All schools must continue to ensure that all students, including LGBT students, are able to learn and thrive in a safe environment, free from discrimination, bullying, and harassment. It should be noted that the Illinois Human Rights Act (775 ILCS 5/1-101 et. seq.) specifically bars discrimination based upon gender identity.
While District policies based on model PRESS policies likely remain legally sufficient with regard to these issues, School Districts may wish to consider whether their current policies and procedures reflect their wishes. They should also monitor legislation introduced in Springfield as well as any regulations proposed by the Illinois State Board of Education in this regard.
If you have further questions, feel free to call me.
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