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New York state district settles suit with NYCLU over alleged discrimination against immigrant students

WKTV reports that the Utica City School District (UCSD) has entered into a settlement agreement with the New York Civil Liberties Union (NYCLU) ending the school district’s practice of diverting some 17- to 20-year-olds away from public high school and into alternative programs. NYCLU had filed the suit on behalf of six refugee students.

The settlement agreement establishes high school as the default education choice for all students and requires those who don’t want to attend to opt out. “This agreement puts in place critical checks to ensure that vulnerable immigrant kids are not cheated out of their education and future by being diverted from high school to alternative programs,” said Phil Desgranges, staff attorney at the NYCLU and lead counsel on the case. “We look forward to working with the state to ensure that all school districts have similar checks in place.”

Under the agreement,UCSD agrees to “proactively engage with all English language learner students and establishes high school as the default education choice for all students, such that students who don’t want to attend high school must opt-out.”

The agreement, which will last four years with bi-annual reporting to the NYCLU and LSCNY, contains the following major provisions requiring the district to:

  • Contact all school-age students the refugee center has documented over the last four years who aren’t enrolled in the high school and explain to them their right to enroll. They must obtain a written waiver for every student who chooses not to enroll in high school.
  • Meet every new English language learner student who goes to the refugee center along with an interpreter. They must explain to students their right to attend the high school, how alternate programs are different, and obtain a written waiver from every student who doesn’t want to enroll.
  • Undergo public education efforts at 17 locations in Utica in five languages advising English language learners about their right to attend high school and how to contact the district.
  • Follow up every year with school-age English language learner students enrolled in a GED program and again offer them the chance to transfer to the high school and obtain a written record if they opt-out.
  • Annually train all people involved in school registration in Utica on laws and policies regarding properly enrolling English language learner students.
  • Maintain policies and trainings that comply with these laws and policies.
  • Appoint a compliance coordinator to comply with the settlement.
  • Permit the six students who filed the lawsuit the chance to attend school past their 21st birthday to compensate for the time they were wrongly denied their education.

Source: WKTV, 5/19/16, By Staff

[Editor’s Note: In April 2015, Legal Clips summarized a story from Syracuse.com reporting that NYCLU and Legal Services of Central New York (LSCNY) had filed suit in federal court on behalf of six refugee students and a class of similar immigrant students against UCSD. The suit alleged that UCSD was barring refugee students between the ages of 17 and 20 from attending Proctor High School, instead sending them to two alternative schools. According to the suit, one of the alternative schools is the Newcomer Program at the Mohawk Valley Resource Center for Refugees, where the only class offered is English as a second language.]

New Jersey settles lawsuit challenging the state’s graduation requirements

The state of New Jersey has entered into a settlement agreement with the Education Law Center (ELC) and the American Civil Liberties Union of New Jersey (ACLU-NJ), reports NJ.com, resolving a suit brought by ELC and ACLU-NJ on behalf of students and families challenging the state department of education’s graduation requirements announced in 2014. Although graduation requirements for current high school students will remain in effect, students graduating this spring will have more protections under the settlement agreement.

The state will allow districts to review last-resort portfolio appeals from seniors until Sept. 1, and students still appealing can walk in their graduation ceremonies if they have met all graduation requirements except the one for standardized testing, according to the settlement. “Through this settlement, we hope to remove some of the hurdles the department placed in front of students, as the window of time before graduation rapidly closes,” said Ed Barocas, ACLU-NJ’s legal director.

In a memo sent to districts in the fall of 2014, the state education department announced a series of tests students could use to meet the requirement. Among those are the SAT, ACT, PSAT and the controversial new state exams, the Partnership for Assessment of Readiness for College and Careers (PARCC) exams.

In a hearing last month, an administrative law judge said the state did not follow the proper process but he was not sure how to remedy the situation. As attorneys argued the case, some high school seniors across the state were still trying to meet the graduation requirement. Seniors who did not score high enough on PARCC, the SAT or the ACT have been participating in extra testing, including a seldom used military competency test.

The settlement obligates districts to notify any students who have not yet met the testing requirement within five days. Those students must be offered a chance to file a portfolio appeal, which involves answering open-ended questions to prove proficiency. The state will be required to track how many students are graduating through the appeals process or are still attempting to and the department of education must report that data to the ELC and ACLU, according to the terms of the settlement.

“We believe that the deliberative process set forth by the NJDOE and informed by stakeholders adequately ensures that all those students who have demonstrated successful completion of graduation requirements will be certified to graduate,” the  Department of Education said.

Source: NJ.com, 5/7/16, By Adam Clark

[Editor’s Note: In May 2013, Legal Clips summarized an article in The Dallas Morning News reporting that the Texas legislature had voted to adopt two new education bills, and the bills would go to Gov. Rick Perry. The testing bill, passed unanimously, reduces the number of high-stakes tests students are required to take and creates a new system of graduation requirements. Texas required students to take 15 end-of-course tests before they were eligible to graduate. A year-long push by school districts and parents, however, has caused the legislature to require only 5 tests in the new bill: Algebra I, English I and II, Biology, and U.S. History. Additionally, the overhauled graduation requirements allow flexibility in a student’s course options. The new system has a student select one of multiple paths, or “endorsements”, leading to graduation.]

Lawsuit claims South Carolina districts and county imposing double tax to pay for police officers in schools

WCBD News 2 reports that a taxpayer has filed suit against the school district and county council of Dorchester County, South Carolina claiming that taxpayers are being taxed twice for providing police officers in the county’s public schools. Former state legislator and Summerville resident Mike Rose contends the school districts and the county are charging too much taxes and charging taxpayers twice for the same service.

The Dorchester School District 2 pays for school officers, but in the last school year the sheriff’s office doubled what they were charging to provide the officers. The school board began exploring other options because they couldn’t pay the new cost per officer. Instead of contracting with a private security company, the county raised taxes to cover costs for the school district.

School districts in Dorchester County are charging taxpayers for school police officers through the taxes collected on items like cars and boats. Under a new ordinance passed in summer 2015, the county is also covering the cost for officers through an increased tax on the homes of residents.

The school district told the I-Team the cost per officer rose from $30,000 per year to $60,000 for officers from the Dorchester County Sheriff’s Office and from the Summerville Police Department. The City of North Charleston covers the entire cost of the officers in the portion of the city within the DD2 boundaries. The school district declined a request for a taped interview, citing the pending lawsuit.

The other element outlined in the lawsuit is that the school was advised last year through an independent audit to hire a private security company to run the SRO program. Running the program would save the school district more than $300,000. It’s a cost saving measure the board passed and then flip flopped on implementing.

Rose believes the school board was pressured by the County Council. Unlike Charleston or Berkeley school districts, DD2 relies on County Council to approve their budget. From Rose’s perspective, the county raised taxes in the amount of $600,000 to pay for officers in the schools through an increase in property taxes. That’s illegal, he claims, under Act 388 that says property taxes can’t be levied for schools after 2006.

In November 2015, the South Carolina Attorney General’s Office issued an opinion stating that the county and school district were charging taxpayers twice for the same officers.

Source: WCBD News 2, 5/16/16, By Rebecca Collett

[Editor’s Note: In October 2012, Legal Clips summarized a decision by the Georgia Supreme Court in Marsh v. Clarke Cnty. Sch. Dist. holding that a taxpayer was not entitled to a court order requiring a school district to return “excess proceeds” collected pursuant to an educational sales and use tax approved by referendum. The supreme court concluded that the “excess proceeds” provision in the state constitution applied “only if the amount collected exceeds (a) the actual cost of the authorized projects or educational expenditures or (b) the debt of the school district.”]

ACLU files Title IX complaint with U.S. Dep’t of ED over Florida district’s transgender student bathroom policy

According to an Associated Press (AP) report on Fox News, the American Civil Liberties Union of Florida (ACLU-FL) has filed a civil rights complaint with the U.S. Department of Education (ED) alleging that Marion County Public Schools’ (MCPS) bathroom policy restricting students to use bathrooms based on their birth sex violates transgender students’ Title IX rights. The complaint was filed after the Marion County School board voted 4-1 in favor of the policy limiting access based on gender at birth.

ACLU-FL’s complaint says a transgender student was suspended several days later for using the men’s restroom at school, despite having done so for years. “In case anyone doubts that the current ugly political rhetoric doesn’t have an impact — in this case the student was suspended from school for using the bathroom he has been using for years!,” said Howard Simon, ACLU-FL’s executive director. The complaint asks ED to order the district to permit the student to use male restroom facilities, remove the suspension from his disciplinary record and revise relevant policies.

Marion County Public Schools spokesman Kevin Christian said he couldn’t confirm the student’s suspension and said the district’s attorney would handle any legal action. “We’re not surprised a complaint was filed,” Christian said. “The school board was warned litigation was likely when they passed it. It’s obviously going to play out in the court system.”

Attorneys for the Liberty Counsel are representing the family of the student who complained about the transgender student, arguing that he is a devout Christian whose religious beliefs and right to privacy were violated when the district previously allowed transgender students to use the bathroom of the gender with which they identify. In a posting about the case on its website, the counsel said the school board’s policy “protects the privacy rights and safety of all Marion County students.”

Source: Fox News, 5/13/16, By AP

[Editor’s Note: ACLU-FL’s complaint to ED asserts that MCPS’ policy is contrary to the U.S. Court of Appeals for the Fourth Circuit’s decision in G.G. v. Gloucester County School Board, which held that “prohibiting a transgender student from accessing restrooms consistent with their gender identity violates Title IX.” The complaint also states:

The Eleventh Circuit has similarly recognized that discrimination against transgender people is sex discrimination. Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (an employment discrimination case  holding that under the Equal Protection Clause, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination”).

In May 2016, Legal Clips summarized an article in the Ocala Star Banner reporting that four of five members of the Marion County School Board support restricting  school bathrooms to students based on birth sex, not gender identity. The proposed policy, which runs counter to guidance handed down by U.S. Departments of Education and Justice recently, would ban transgender students from using the bathrooms for the gender with which they identify.]

 

Fourth Circuit panel rules Maryland school district did not violate IDEA by refusing to train disabled student’s one-on-one aide to perform CPR and Heimlich maneuver

SE.H. v. Board of Educ. of Anne Arundel Cnty. Pub. Sch., No. 15-1486 (4th Cir. May 2, 2016)

Abstract: A U.S. Court of Appeals for the Fourth Circuit three-judge panel has ruled that a Maryland school district did not fail to provide a disabled student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA) because it did not provide the student with an individual trained in Cardiopulmonary Resuscitation (CPR) and the Heimlich maneuver to accompany him throughout the school day. Although it found the federal district court had correctly granted the school district’s motion for summary judgment on the IDEA claim, the panel concluded that the lower court had not clearly articulated its reasons for dismissing the student’s Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) claims. The panel, therefore, remanded those claims to the district court for the lower court to clarify its reasoning for dismissing those claims.

Facts/Issues: SE.H., who suffers from multiple disabilities, attended Rippling Woods Elementary School. Pursuant to his Individualized Education Program (IEP), he was assigned to a one-on-one aide. However, SE.H.’s parents were dissatisfied with the IEP because it did not require that an individual trained in Heimlich and CPR be by SE.H.’s side at all times throughout the day.

The Anne Arundel County Public Schools (AACPS) IEP team then held nine meetings between April 17 and August 28, 2013, and SE.H.’s parents “continued to bring this issue up for discussion.” AACPS rejected this request at every turn, explaining that they were only required to have trained personnel in the building, which they did.

Even when the Anne Arundel County Health Department offered to train SE.H.’s aide in CPR and Heimlich maneuver, Appellee Patricia DeWitt, AACPS Coordinator of Special Services, would not allow her to be trained because “[i]t would set a precedent and [the Aide] already ha[d] too much on her plate.”

According to DeWitt, training the aide would “[not be] an appropriate use of staff.” SE.H.’s IEP for the 2013-14 school year was finalized on August 28, 2013, but his parents were not satisfied. They filed a due process complaint with the OAH on September 10, 2013, claiming that AACPS failed to provide SE.H. with a FAPE as required by the IDEA.

An administrative law judge (ALJ) concluded SE.H. was not entitled  under IDEA  to an individual trained in CPR and the Heimlich maneuver to accompany him throughout the school day. The ALJ determined that the Section 504 issues (and presumably, the ADA issues) raised in the administrative complaint should be dismissed for lack of jurisdiction.

This determination was based on AACPS’s October 15, 2013 letter to the OAH explaining that it no longer possessed the authority to hold Section 504 hearings. Therefore, the ALJ only considered whether AACPS “failed to provide [SE.H.] a [FAPE] in the least restrictive environment for the 2013-2014 school year” under the IDEA.

The parents then filed suit in federal district court. Counts I and II challenged the ALJ’s IDEA decision, alleging substantive and procedural IDEA violations. Counts III, IV, V, and IX alleged Section 504 violations only: intentional discrimination (III), discrimination in AACPS’s policies and practices (IV), denial of reasonable accommodation (V), and failure to provide a FAPE (IX). Counts VI and VII alleged claims under both the ADA and Section 504: failure of AACPS to act against certain employees for discriminatory actions (VI), and retaliation (VII).6 And Count VIII alleges AACPS violated Title II of the ADA by excluding Se.H. from programs, services, and benefits by reason of his disabilities.

Apart from attorney’s fees and costs,the parents only sought the following equitable relief: an order requiring the aide to be trained in Heimlich and CPR, and a declaratory judgment stating that AACPS’s Section 504 practices violate Section 504 as applied to SE.H.

The district court granted the parents’ motion for summary judgment on all claims. It found AACPS has in place reasonable procedures to assure that if SE.H. does need assistance, there are persons available who will be able to help him. The court stated that “the measures that defendant has put in place provide adequate protection of SE.H.”

The district court mentioned Section 504 and the ADA only in the opening sentence of the memorandum decision, and in a footnote observed, “[T]he emergency plan that defendant has in place for SE.H. complies with applicable law.”

Ruling/Rationale: The Fourth Circuit panel affirmed the district court granting AACPS’ motion for summary judgment as to the IDEA claim. However, because the lower court’s reasons for disposing of the Section 504 and ADA claims were unclear, it remanded the case to allow the district court to clarify the reasoning underlying its disposition of these claims.

The panel first took up the parents’ argument that the ALJ’s findings of fact were not “regularly made,” and, therefore, not entitled to deference by the district court. Specifically, the parents contended the ALJ’s IDEA decision was not “regularly made” because: (1) it was “not well-reasoned and nor [sic] supported by the record”; (2) it “failed to make determinations based upon findings of fact and current IDEA statutes and regulations” and instead characterized the issues as “policy” disputes; and (3) it erred in its analysis regarding “training” of school personnel.

The panel found the parents’ argument that the ALJ’s “findings were not entitled to deference” had been waived because “their opening brief does not specifically note which findings they challenge or which ‘determinations’ the ALJ failed to make.” Instead, it concluded the ALJ’s proceedings were not “far from the accepted norm,” noting “the ALJ decision was well-reasoned and supported by the record.”

The panel also found the parents’ “reliance on the ALJ’s mention of ‘policy’ disputes is a red herring.” It said, “[T]he ALJ’s statement about ‘policy’ was merely a recognition that the dispute between the parents and AACPS was based in part on interpretation of a state policy.”

Finally, the panel dismissed the parents’ argument regarding training as without merit. The parents contended that the ALJ’s statement that “‘training that a school system decides to use . . . is solely within the purview of school officials’” was incorrect and “subsequently over ruled [sic]” by the enactment of 20 U.S.C. § 1414(d)(1)(A). That provision of IDEA states: “An IEP should include ‘a statement of the program modifications or supports for school personnel [i.e., special training] that will be provided for the child.’”

The panel stressed that even assuming the provision “overruled the concept upon which the ALJ relied,” the provision did not ultimately undermine the ALJ’s decision. It found that the “ALJ still analyzed whether AACPS’s decision to forego training SE.H.’s Aide deprived him of a FAPE.”

Regarding the parents’ Section 504 and ADA claims, the panel concluded “the district court’s decision on the ADA and Section 504 claims is not apparent.” As a result, it said, “We believe the best course of action is to remand and allow the district court to clarify the reasoning underlying its disposition of Appellants’ Section 504 and ADA discrimination, reasonable accommodation, retaliation, and FAPE claims.”

SE.H. v. Board of Educ. of Anne Arundel Cnty. Pub. Sch., No. 15-1486 (4th Cir. May 2, 2016)

[Editor’s Note: In April 2016, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) and the Maryland Association of Boards of Education (MABE) filed an amicus brief in M.L. v. Bowers urging the U.S. Court of Appeals for the Fourth Circuit not to expand the Individuals with Disabilities Education Act’s (IDEA) free appropriate public education (FAPE) requirement to include religious/cultural instruction.] 

 

Under pressure from governor and Republican state legislators, Mississippi education officials reverse course on promise to follow federal guidance on transgender students’ access to school restroom and locker room facilities

An Associated Press (AP) report from ABC News says that the Mississippi Department of Education (MDE), bowing to pressure from Gov. Phil Bryant and a number of Republican state legislators, is now saying it won’t follow new federal guidance on use of bathrooms and locker rooms by transgender students. In a brief statement made earlier in the week, State Superintendent Carey Wright said MDE would “follow the lead of state leadership” and take no action until the state Board of Education discusses the situation.

Last week after the joint U.S. Departments of Education (ED) and Justice (DOJ) guidance was issued, MDE officials said they would follow the guidance by federal authorities calling for transgender students to be treated consistently with their gender identity. They cited a need for a “safe and caring school environment.”

Republicans in other states have opposed the guidance, with some seeking to join legal challenges. In Tennessee, Gov. Bill Haslam questioned the need for a special legislative session to block it, as some lawmakers have proposed. North Carolina’s GOP chairman called on Democratic state Attorney General Roy Cooper to clarify his position on the guidance. Kansas Gov. Sam Brownback and Republican legislators in Arkansas also issued criticisms.

The guidance isn’t legally binding. Courts haven’t definitively said whether federal civil rights laws protect transgender people. But schools that refuse to comply could lose federal education funding and face civil rights lawsuits from the government.

Mississippi’s K-12 schools got more than $700 million in federal funding in the 2014-2015 school year. Federal dollars make up more than 30 percent of the budgets of districts serving the state’s poorest populations.

State Board of Education Chairman John Kelly said the board will have a special meeting within the next two weeks to discuss the issue. State board member Johnny Franklin said the nine board members had discussed Wright’s position among themselves. Franklin said he’d gotten more than 10 phone calls opposing Wright’s previous position and was “pleased” by Wright’s move.

Gov. Bryant has encouraged state officials to resist “federal coercion.” “As I said last week, the Mississippi Department of Education should not force the state’s school children to participate in the Obama administration’s social experiment,” Bryant said. “I am encouraged by Dr. Wright’s actions and hope she and the Board of Education ultimately see fit not to implement this outrageous directive.”

Franklin said Bryant, who appointed him to the board in 2014, hadn’t contacted him. But Wright’s hand may have been forced by an increasing number of lawmakers calling for her to be fired. Earlier this week, 27 Republican state senators among the GOP’s 32-member supermajority wrote to Wright and the board calling for “swift and decisive action on this urgent matter.”

Asserting that federal officials are trying to “blackmail” Mississippi, the senators wrote that, “Dr. Wright made the decision to usurp the board’s authority and unilaterally issue the policy decision to acquiesce to the illegal demands of the federal government. For this, the superintendent must be held accountable.” In addition, 11 Republican House members asked Wright to reverse the department’s position or resign. “The policy of allowing boys or men into bathrooms and locker rooms with girls poses a threat to the safety and well-being of every school-aged girl in this state,” the group wrote.

In a new law allowing religious groups and some private businesses to deny services to gay and transgender people or unmarried parents, Mississippi lawmakers declared that people have an “immutable biological sex as objectively determined by anatomy and genetics at time of birth.” The ACLU and the Campaign for Southern Equality have filed federal court challenges to the law. “Isolating transgender students, as well as threatening a government official who is asked to follow the law, sends, yet another message that it is acceptable to discriminate in Mississippi,” American Civil Liberties Union of Mississippi Executive Director Jennifer Riley-Collins said.

Source: ABC News, 5/18/16, By Jeff Amy (AP)

[Editor’s Note: In May 2016, Legal Clips published a Sua Sponte article reporting that ED/DOJ had issued joint guidance in the form of a “Dear Colleague Letter” (DCL) aimed at ensuring that schools protect the civil rights of transgender students. Accompanying the DCL, is a separate document from ED’s Office of Elementary and Secondary Education (OESE), titled Examples of Policies and Emerging Practices for Supporting Transgender Students. The DCL begins with a discussion of terminology. Specifically, it defines the terms gender identity, sex assigned at birth and transgender. It also reiterates schools’ requirement to comply with the sex discrimination prohibitions of Title IX as a condition of receiving federal funds. It states:

This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.

Shortly after ED/DOJ’s release of its transgender student guidance, the National School Boards Association (NSBA) issued a written statement in response. It stated in part:

We believe education is a civil right and that students learn best in safe learning environments. Students and school staff should not be subjected to discrimination on any basis. School board members, as community leaders, play a key role in promoting productive dialogue about diversity, including gender identity. NSBA looks forward to working with school boards to lead their communities in modelling and encouraging inclusive thinking and behavior, considering credible and balanced information on the issue of gender identity to ultimately create a positive change.]

 

 

Federal district court orders Mississippi district to desegregate ending five decade long suit

A U.S. District Court has ordered Cleveland School District (CSD) to consolidate its majority black secondary schools with historically white schools, ending a five-decade long legal battle to desegregate its schools, reports The Clarion Ledger. The district court rejected as unconstitutional two alternatives proposed by CSD, agreeing with the U.S. Department of Justice (DOJ) that the only way to achieve desegregation is through consolidation.

“Six decades after the Supreme Court in Brown v. Board of Education declared that ‘separate but equal has no place’ in public schools, this decision serves as a reminder to districts that delaying desegregation obligations is both unacceptable and unconstitutional,” Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, said. “This victory creates new opportunities for the children of Cleveland to learn, play and thrive together. The court’s ruling will result in the immediate and effective desegregation of the district’s middle school and high school program for the first time in the district’s more than century-long history.”

Judge Debra Brown also ordered the parties to submit a proposed timeline to implement the plan in such a way as to ensure the immediate termination of the school district’s dual system. She set the deadline for no later than 21 days from the entry of her opinion. “The delay in desegregation has deprived generations of students of the constitutionally guaranteed right of an integrated education,” Brown said. “Although no court order can right these wrongs, it is the duty of the district to ensure that not one more student suffers under this burden.”

Holmes Adams, attorney for the Bolivar County Board of Education, said Monday the board is still reviewing the opinion. He said the board will make a decision on whether to appeal after fully digesting the 96-page opinion.

The DOJ plan, approved by the court, will consolidate the virtually all-black D.M. Smith Middle School with the historically white Margaret Green Junior High School. The district will also consolidate the virtually all-black East Side High School with the historically white Cleveland High School. Further, the district will review its existing educational programs and identify new programs for the consolidated schools, address staffing considerations and performing necessary maintenance and upgrades to facilities.

The approved plan commits the district to a path of full engagement with students, parents, educators and community stakeholders in implementing consolidation. Attorney Ellis Turnage, who worked with DOJ on the case, said things are still divided in Cleveland, with the railroad track being the dividing line. He said whites live on the west side and blacks live on the east side.

Source: The Clarion Ledger, 5/17/16, By Jimmie E. Gates

[Editor’s Note: Cowan v. Bolivar County Board of Education, which is the name of the case that was filed regarding segregation in Cleveland, Mississippi, was filed in 1965. In the conclusion of its opinion, the district court said:

Nearly fifty years ago, the United States Supreme Court announced that “[t]he haltingly slow days of all deliberate speed have given way to the mandated duty to immediately desegregate.”  Miller v. Bd. of Educ. of Gadsden, 482 F.2d 1234, 1236 (5th Cir. 1973) (citing  Alexander, 396 U.S. at 20). In the decades since this pronouncement, the District has failed to meet this obligation as it concerns the high schools and middle schools in Cleveland, Mississippi. This failure, whether born of good faith, bad faith, or some combination of the two, has placed Cleveland in the unenviable position of operating under a desegregation order long after schools in bastions of segregation like Boston, Jackson, and Mobile have been declared unitary.

In March 2016, Legal Clips summarized an article in The Dispatch reporting that U.S. District Court Judge Michael P. Mills had approved a desegregation order negotiated between Starkville-Oktibbeha Consolidated School District (SOCSD) and the U.S. Department of Justice (DOJ) that sets the school attendance zones agreed upon by both sides. The student assignment plan is expected to change once funding is secured for a SOCSD-Mississippi State University Partnership school, which will educate all countywide sixth and seventh graders.]

Nevada court dismisses ACLU’s suit challenging constitutionality of state’s private school scholarship program

According to the Las Vegas Sun, Clark County District Court Judge Eric Johnson has dismissed a suit brought by the American Civil Liberties Union of Nevada (ACLU-NV) claiming Nevada’s education savings account (ESA) program violated Nevada Constitution’s prohibition on using public money for religious purposes. The judge held that the ESA program did not violate the so-called Blaine Amendment to the state constitution.

The program allows families to receive a portion of the state funds that would otherwise follow their student to a public school, for use in expenses like private school tuition or tutoring. If approved, families receive the money in a state-monitored savings account. The ACLU sued late last year to block the program, enacted with the passage of SB302 during last year’s legislative session.

The program has become a lightning rod in the national school choice debate. While other states, including Arizona, currently have education savings accounts, Nevada’s program is groundbreaking in that the money is available potentially to any family, regardless of income or special needs.

Nevada Attorney General Adam Laxalt, who is currently fighting another lawsuit against the program in a case headed for the state supreme court, called the ruling “a huge and important step in getting certainty for the thousands of families waiting to participate in Nevada’s ESA program.” “The court correctly dismissed these speculative and tenuous claims,” he added.

Opponents have countered that the money takes much-needed funds away from public schools at a time when many school districts and communities are struggling with low test scores and rising poverty. “The Nevada Constitution provides robust safeguards for religious liberty to prevent this misuse of public funds, and the court’s failure to give full effect to these protections is troubling,” said ACLU-NV legal director Amy Rose.

Source: Las Vegas Sun, 5/19/16, By Ian Whitaker

[Editor’s Note: In September 2015, Legal Clips summarized an article in the Las Vegas Sun reporting that the ACLU-NV had brought suit challenging Nevada’s recently enacted private school voucher program on the ground the program violates state laws prohibiting public money from being used for religious purposes. The program, passed as SB302 by lawmakers in 2015, goes far beyond similar voucher programs elsewhere in the country. Instead of only being available to certain families based on income or special needs, it is available to any family whose child is attending public school. Those who qualify will receive around $5,000 to spend on things like private school tuition, tutoring or distance education.

As the Las Vegas Sun article notes there is second separate suit challenging Nevada’s ESA program that is currently on appeal to the Nevada Supreme Court. In April 2016, Legal Clips summarized an article in the Reno Gazette-Journal reporting that the National School Boards Association (NSBA) had filed an amicus brief with the Nevada Supreme Court in support of a suit filed by a group of parents challenging Nevada’s Education Savings Account (ESA) program, which allows families to obtain $5,100 in state funds for private school tuition. The suit is pending before the Nevada Supreme Court after a Nevada District Court in Carson City put the ESA program on hold. The parents’ suit claims Nevada’s ESA program unconstitutionally undermines public education. NSBA’s brief characterizes the program as “part of a nationwide campaign by special interest groups to divert tax dollars away from public education and into private hands.”]

 

U.S. Congressman from Indiana introduces bill to block enforcement of ED/DOJ transgender student guidance

U.S. Rep. Luke Messer (R-IN) has introduced legislation in the House of Representatives to block the new federal guidelines that call on schools to allow transgender students to use restrooms and locker rooms based on gender identity, says the Indianapolis Star. Messer’s proposed legislation would prevent schools from losing federal funding if they don’t follow the guidelines. He said such decisions “should be made at the state and local level by people who will put the interest of our kids ahead of political ideology.”

If Messer’s bill were to be voted on by Congress, it would have to receive enough support to be able to override an expected presidential veto.

The federal guidance was sent to schools last week, the same week the U.S. Department of Justice (DOJ) and North Carolina exchanged lawsuits over that state’s new bathroom law, which requires people to use the public restrooms that correspond to the sex listed on their birth certificates.

According to President Obama the federal guidance is aimed at protecting transgender students from bullying. Indiana Superintendent of Public Instruction Glenda Ritz praised the directive. However, Indiana Gov. Mike Pence criticized the guidelines, saying “the federal government has no business getting involved in issues of this nature.”

Although the guidance doesn’t have the force of law, it tells schools how the U.S. Department of Education intends to enforce Title IX. Because Title IX is directly tied to federal education funding, the guidance carries an implied threat: follow the federal guidelines or risk losing those funds.

Indiana receives more than $1.5 billion in federal funding for various education programs. Another $2.4 billion in federal funds is spent on student loans. Any threat of funding loss would be directed at the noncompliant school, not the entire state. But the denial of federal funds appears to be a recourse the federal government is reluctant to take.

More than three dozen House Republicans, sent a letter to Obama  asking him to rescind “your poorly executed threat to school districts across the country and reaffirm their right to govern themselves as they see fit within the bounds of the law.” The letter also said, “We view this as an effort to implement your administration’s political agenda outside the bounds of the law and against the will of the American people.”

Source: Indianapolis Star, 5/18/16, By Maureen Groppe

[Editor’s Note: U.S. Rep. Messer’s bill, ‘‘Prohibiting the Usurpation of Bathroom Laws through Independent Choice School Act of 2016,” states in part:

It shall not be unlawful under any Federal law (including title IX of the Education Amendments of 1972) for a State, or local government of a State, to enact or enforce a policy regarding the use of sex-segregated bathrooms, or sex-segregated locker rooms, of educational institutions on the basis of gender identity.

The proposed legislation prohibits the federal government from withholding or reducing federal assistance “on the basis that a State, or local government of a State, enacts or enforces a policy regarding the use of sex-segregated bathrooms, or sex-segregated locker rooms, of an educational institution on the basis of gender identity.”] 

 

Civil rights group’s suit alleges Florida district is denying enrollment to immigrant children

The Southern Poverty Law Center (SPLC) has filed suit in federal court against Collier County school district claiming the school district is denying immigrant students access to a public education and discriminating against those with limited English skills, says the Naples Daily News. SPLC’s complaint contends the school district violated several federal and state laws by refusing to enroll immigrant students in Collier County public high school, instead sending them to non-credit, English Language-only adult education programs that charge a fee.

The class action lawsuit was filed on behalf of the parents and a tutor of three minors who were denied enrollment in Immokalee High School. The lawsuit states the students were told to attend an adult English language class at Immokalee Technical College, where they are segregated from their English-speaking peers.

The Southern Poverty Law Center estimates that about 300 immigrant students, ages 16 and 17, who moved into Collier since August 2013 could have been denied access or discriminated against by the county school system. The students were also denied the benefit of the English Language Learners schools’ plan.

The legal complaint states:

Defendants deny these students equal access to educational opportunities offered in high school, the opportunity to earn credits toward a high school diploma, and the opportunity to learn skills and core subject matter that they will need in the future, thereby limiting their educational opportunities, career opportunities, and earning potential.

The suit asserts that the denial is based on a policy that the school board approved in February 2013 and put into effect on August 1, 2013, as the number of immigrant minors arriving in the U.S. from abroad increased.

Source: Naples Daily News, 5/18/16, By Maria Perez

[In April 2015, Legal Clips summarized an article in Syracuse.com reporting that the New York Civil Liberties Union (NYCLU) and Legal Services of Central New York (LSCNY) had filed suit in federal court on behalf of six refugee students and a class of similar immigrant students against Utica City School District (UCSD). The suit alleges that UCSD is barring refugee students between the ages of 17 and 20 from attending Proctor High School, instead sending them to two alternative schools. According to the suit, one of the alternative schools is the Newcomer Program at the Mohawk Valley Resource Center for Refugees, where the only class offered is English as a second language.]

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