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Report alleges public schools in Wisconsin continue to use restraint and seclusion despite 2011 law curbing such pratices

Disability Rights Wisconsin (DRW), Wisconsin Family Ties and Wisconsin Facets, have issued a report that found that disabled students in Wisconsin public schools are being subjected to restraint and seclusion, says the Journal Sentinel, even though the state enacted a law in 2011 to curb those practices. The three organizations are asking the state legislature to strengthen the law on a number of fronts, from requiring the state Department of Public Instruction to collect data on incidents to expanding it to cover police officers working in schools.

Sally Flaschberger, an advocacy specialist with DRW, said, “Overall, the goal is to be doing de-escalation for these students…And we think school districts can be looking at their data and talking about how they can reduce the use of these techniques.”

According to the report, nearly 3,600 students in 381 districts, 80% of them with disabilities, were restrained or isolated for disruptive or “challenging” behaviors in public schools across the state in 2013-’14, which is the most recent data available. In all, it says, there were more than 20,000 incidents, although advocates could not say for certain that some incidents weren’t counted twice, because of inconsistencies in district reporting methods. Of the districts that provided information, the report says, 43 reported more than 100 incidents, six reported more than 500.

The law banned some restraints altogether, including mechanical and chemical restraints; allowed the techniques only when it is necessary to ensure safety; and required schools to report incidents to their school boards annually.

The report offers an incomplete and sometimes unclear picture of the scope of the problem. The data were collected through open records requests to 450 individual districts. However, 40 did not respond and 29 of those that did refused to provide information citing confidentiality concerns. The report also does not include enrollment data for the 2013-’14 school year, so a per capita analysis of incidents is not possible.

The problem with the data, disability rights advocates say, only reinforces the need for the state to collect and maintain the data in a consistent format.

Source: Journal Sentinel, 2/9/16, By Annysa Johnson

[Editor’s Note: Among the data in the DRW/WFT/WF report:

• Total number of seclusions and restraints in Wisconsin for the 2013-2014 school year (for those school districts that reported data): 20,131

• Total number of students involved in incidents: 3,585

• Total number of students with a disability involved in incidents: 2,876 • Total number of school districts with over 100 seclusions and restraints: 43

• Total number of districts with over 500 seclusions and restraints: 6

In May 2015, Legal Clips summarized an article in Education Week reporting the U.S. Department of Education’s Office for Civil Rights (OCR) issued a report in April 2015, which found that nearly half of all complaints to the civil rights office continue to involve students with disabilities, with sex- and race-discrimination complaints making up a lesser part of the caseload. Assistant Secretary of Education Catherine E. Lhamon said the record 10,000 complaints in all categories of discrimination filed in each of the fiscal years 2013 and 2014 send a clear message that her office is aggressively enforcing civil rights laws designed to end discrimination on the basis of race, color, national origin, sex, disability, and age in all programs or activities that receive federal financial assistance.]

  

Utah facing school funding suit by advocacy group claiming inadequate funding levels are factor in student academic underperformance

The Alliance for a Better Utah (ABU) has announced that it is planning to file suit against Utah to force the state legislature to increase funding to public schools, reports KSL.com. ABU points out that Utah has the lowest per-pupil spending amount in the nation, as well as cuts in K-12 education dollars leading up to and during the Great Recession.

ABU’s founder and board president Josh Kanter insists those inadequate funding levels have contributed to academic underperformance. “We think the Legislature is the best way to get this done, but they seem to be shirking their responsibility to do it,” Kanter said. “The court system, it’s a less-than-ideal place to have to go, but we believe that the conversation’s been going on for too long. The Legislature gives us too much lip service. The public has demanded it multiple times, poll after poll.”

Utah is one of a few states that hasn’t yet faced litigation over public education funding. Utah’s legislative leaders point to efforts in recent years to improve the education budget as evidence that students take a high priority in the state budget.

Kanter said the alliance is “fairly far along” in the process of finding a firm to represent the group, but it’s unclear when it plans to file a complaint.

Source: KSL.com, 2/9/16, By Morgan Jacobsen

[Editor’s Note: In January 2015, Legal Clips summarized an article in the Times Herald-Record reporting that a trial in a suit brought by eight school districts against the State of New York had begun. The school district plaintiffs were identified as high poverty school districts. A state supreme court (trial level) is hearing testimony in Maisto, et al. v. New York, years after districts representing 13 small cities originally sued the state for more education aid in 2008.]

Vermont district settles suit over no-trespass order

The VT Digger reports that Barre Supervisory Union (BSU) has settled a federal court suit brought by parent Katie Sherman, who was subject to an indefinite no-trespass order after she expressed sympathy for a 2006 school shooter. BSU has agreed to pay Sherman $83,750.

The no-trespass order was imposed after Sherman made a comment to Martha Frank, of the Vermont Family Network, indicating that she understood why Christopher Williams was “pushed to the edge.” Williams killed a teacher and wounded another in a shooting rampage in 2006 at Essex Elementary School. Sherman claimed she made the comment “out of frustration.”

Sherman’s lawyer, Ron Shems, called the school’s response “very heavy-handed.” The school did not talk to Sherman about the comment and left no avenue for appealing the no-trespass order except through a lawsuit, according to Shems.

Barre Supervisory Union Superintendent John Pandolfo said the school district doesn’t believe the lawsuit had merit and stands by the way officials acted in an effort to keep children safe. A set of protocols is in place that schools must follow when threats allegedly are made. “By settling this case, we were able to keep our schools safe and to resolve a dispute with a parent,” Pandolfo said. “The district does not wish to participate in protracted disputes with parents. We work hard to collaborate for the benefit of our students. However, at the same time, safety is always the most important priority. We will always act decisively to keep our students and staff safe.”

Sherman, whose son has learning, developmental and behavioral disabilities that include autism and attention deficit hyperactivity disorder, accused the school district of not providing some of those accommodations and said she began advocating for her son to the school principal and going up the chain of command to the superintendent. She also filed an administrative due process complaint with the Vermont Agency of Education.

It was after Sherman told Frank that she was planning to attend school board meetings “to express her concerns and opinions regarding the abilities of the BTSD staff” that Frank told school officials of Sherman’s reference to the Essex shooting, according to the lawsuit. “There was no need to issue a no-trespass order. They were just getting rid of a thorn in their side,” Shems said. “She had been complaining and vociferously challenging the school in terms of their failures to comply with her son’s IEP, as any mom should.”

Source: VT Digger, 2/7/16, By Tiffany Danitz Pache

[Editor’s Note: In July 2015, Legal Clips summarized an article in the Times Argus reporting that Katie Sherman, the parent of a student with multiple disabilities, had filed suit in federal court against BSU and Barre Town School District, alleging she was improperly issued a no-trespass order from the Barre Town Middle and Elementary School grounds. Sherman’s suit stated that after a dispute with school officials over her son’s individual education plan, she decided to home-school him.]

 

Tenth Circuit panel rules that teacher stated valid Title VII hostile work environment claim based on national origin

Unal v. Los Alamos Pub. Sch., No. 15-2055 (10th Cir. Jan. 29, 2016)

Abstract: A U.S. Court of Appeals for the Tenth Circuit three-judge panel has ruled that a teacher of Turkish origin has stated a valid Title VII hostile work environment claim based on national origin. However, it rejected her retaliation claims under Title VII, § 1981, and the New Mexico Human Rights Act.

The panel concluded that the workplace harassment was based on the teacher’s national origin and that it was sufficiently severe or pervasive to demonstrate a hostile work environment. It found that the facts as alleged supported the “inference that the administration at Aspen Elementary maintained a culture of animus towards foreign-born individuals.”

With regard to the retaliation claims, the panel, in agreement with the federal district court, held that each claim failed on separate grounds.

Facts/Issues: Zeynep Unal, who is of Turkish extraction and Muslim, was employed by Los Alamos Public Schools (LAPS) as an elementary school teacher. She began working at Aspen Elementary School (AES) in 2006. In 2008, LAPS hired Katheryn Vandenkieboom as the principal of Aspen Elementary School. As principal, Ms. Vandenkieboom was Ms. Unal’s supervisor from 2008 to 2012.

Unal alleges that during her tenure at AES, Vandenkieboom encouraged a culture of racial and ethnic insensitivity. She claims Vandenkieboom and AES staff not only engaged in slurs directly about Unal’s nationality, but also made insensitive remarks about other nationalities.

In addition, Unal, who was the only foreign-born teacher at AES, alleges she was subjected to disparate treatment because of her national origin. According to Unal, Vandenkieboom also excluded her from certain work-related communications in which Unal had previously participated.

Unal reported what she perceived as discriminatory conduct. In the spring of the 2010–2011 school year, Unal wrote a letter to the Assistant Superintendent, Paula Dean. In the letter, Unal expressed her belief that Vandenkieboom was biased against her and that Vandenkieboom seemed to have a problem with Unal’s culturally different background.

Subsequently, Vandenkieboom, the Human Resource Coordinator, and Assistant Superintendent Dean entered Unal’s class unannounced, pulled Unal out of the classroom, and told her that Vandenkieboom would remain her supervisor and that the school was moving her class from the building to an outside portable classroom, effective immediately. This incident happened within a month of the end of the school year. Neither Vandenkieboom nor LAPS provided an explanation for the move.

Unal then applied for and received medical leave, which she remained on for the duration of the 2011–2012 school year. In January 13, 2012, while she was on leave, Unal filed a charge of discrimination against defendants with the Equal Employment Opportunity Commission (EEOC). The EEOC eventually granted Unal a right-to-sue letter.

Several months later, in accordance with Unal’s teaching contract, LAPS sent her a notice of intent to rehire for the 2012–2013 school year. Per the terms of the notice, Unal was required to return the signed notice within fifteen days to renew her contract. The notice was dated May 7, 2012. Unal received the notice on May 19, 2012, and hand delivered the signed notice on May 23, 2012.

Despite Unal having returned the notice within fifteen days of receiving it, LAPS attorneys did not initially accept the notice, thereby effectively terminating Unal. After Unal’s attorneys became involved, however, LAPS conceded that Unal’s response was timely and rescinded the termination. Unal entered a contract with LAPS to teach at a different elementary school for the 2012–2013 school year.

Unal filed this lawsuit against LAPS, Superintendent Eugene Schmidt, and Vandenkieboom alleging, among other things, a hostile work environment and retaliation in violation of Title VII, § 1981, the Equal Protection Clause to Fourteenth Amendment, and the New Mexico Human Rights Act.

Unal alleged three separate instances of retaliation: (1) Vandenkieboom’s issuance of three disciplinary letters shortly after Unal sent a letter to the district complaining of discrimination; (2) Vandenkieboom and Assistant Superintendent Dean’s conduct in entering her classroom unannounced, reneging on their commitment to assign Unal a new supervisor, and ordering her class to relocate to a portable trailer shortly after she filed her formal grievance; and (3) the district’s initial decision to terminate Unal for allegedly failing to timely respond to the notice of intent to rehire.

Defendants moved for summary judgment on all counts, and the district court granted the motion in whole. With regard to the hostile-work-environment claim, the district court reasoned that the evidence failed to show Vandenkieboom’s and her staff’s conduct was sufficiently severe or pervasive to support a claim for hostile work environment.

As to the retaliation claims, the district court rejected each on separate grounds. It concluded that (1) Unal failed to demonstrate Vandenkieboom knew of Unal’s letter to the district at the time she issued the disciplinary letters, (2) the relocation of Unal’s class to the portable classroom outside the building did not constitute a materially adverse employment action, and (3) no causal connection existed between Unal’s EEOC action and LAPS’s initial decision to terminate her.

Ruling/Rationale: The Tenth Circuit panel reversed in part and affirmed in part the district court’s decision. Addressing the hostile work environment claim, it pointed out that under Title VII an employer may not “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race . . . or national origin.” The panel said that in order for an employee to state a prima facie case, she must show:

“(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on [national origin]; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of [her] employment and created an abusive working environment.”

Because the defendants conceded Unal had satisfied the first and second elements of a hostile work environment claim, the panel focused on the questions of whether the harassment was based on Unal’s national origin and whether it was sufficiently severe or pervasive to demonstrate a hostile work environment. Turning to the issue of whether Unal had shown national-origin based harassment, it noted that she must “show harassment stemming from animus toward her national origin.” It also emphasized that “courts evaluating a hostile-work environment claim must avoid viewing individual instances of hostility in isolation but instead must look to the ‘totality of the circumstances.’”

According to the panel, Unal was asserting three categories of evidence that she contends create a genuine issue of national-origin-based harassment: “(1) comments or conduct that were overtly based on her nationality, (2) hostile comments made about people of other nationalities, and (3) facially-neutral conduct demonstrating she was treated differently than her U.S.-born peers.” In regard to the first category, it found that while only one comment was directly attributable to Unal’s nationality, a number of other comments, when taken in context, “were intended to emphasize negatively Ms. Unal’s status as a foreigner.” As a result, the panel concluded “a jury could reasonably infer from this comment that Ms. Vandenkieboom harbored animus toward Ms. Unal because of her national origin.”

As to the second category, the panel stated Unal’s “evidence of harassing comments directed at other nationalities will support an inference of a national-origin-based hostile work environment if Ms. Unal was present when they were made or otherwise became aware of them ‘during the time that she was allegedly subject to a hostile work environment.’” After reviewing the evidence, it was persuaded “that the comments directed at other nationalities of which Ms. Unal was aware support an inference that the administration at Aspen Elementary maintained a culture of animus towards foreign-born individuals.”

Turning to the third category, the panel concluded Unal had “presented evidence of various facially neutral incidents that a jury could view as products of national-origin hostility.” It said, “The relevant circumstances here include Ms. Unal’s status as the school’s only foreign-born teacher, Ms. Vandenkieboom’s disparate treatment of other teachers, and evidence showing a culture of animus towards individuals of different national origin.” The panel concluded: “Viewing all the evidence together, in context, a reasonable jury could conclude that these facially neutral incidents were products of a larger environment of hostility toward foreign-born individuals like Ms. Unal.”

The panel next took up the issue of whether due to the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of [her] employment and created an abusive working environment. While noting Unal had alleged no single incident that was sufficiently severe to satisfy this element of a hostile work environment on its own, it pointed out Unal contended that she “was the direct recipient of three harassing comments based on her national origin; heard or became aware of insensitive comments made about Asian students and people who speak with accents; and experienced numerous incidents of disparate treatment that could reasonably be viewed as intended to isolate, disregard, or undermine her because of her national origin.”

Based on Unal’s evidentiary allegations, the panel was “persuaded that the harassing conduct occurred with enough frequency that a reasonable jury could conclude Unal experienced a pervasively hostile work environment.” It concluded that a reasonable jury could find this conduct was both objectively and subjectively hostile. It stated, “When viewed in the light most favorable to Ms. Unal, this evidence demonstrates she subjectively felt a “steady barrage” of harassing conduct.”

In sum, the panel concluded: “Although this is a close case, viewing Ms. Unal’s allegations in context and considering the totality of the circumstances, we conclude her hostile work environment claim should have survived summary judgment.”

In regard to the retaliation claims, the panel said, “Applying this framework to Ms. Unal’s three claims of retaliation, we conclude the district court properly granted summary judgment on each claim.”

Unal v. Los Alamos Pub. Sch., No. 15-2055 (10th Cir. Jan. 29, 2016)

[Editor’s Note: In January 2016, Legal Clips summarized an article in The Daily Record reporting that Mabel Smith, who is employed by Prince George’s County Public Schools (PGCPS) as a teacher, is suing the school district claiming that Amin Salaam, the principal of Kettering Middle School, retaliated against her because she is of Jamaican origin. The suit alleges that Smith was “singled out” for harsh treatment by Salaam, which led to her having to take an extended medical leave.]    

African-American student’s suit alleges that Michigan district has failed to stop classmate from using racial slurs directed at student

mlive reports that an African-American middle school student, identified as S.W., has filed suit against Grand Rapids Public Schools (GRPS) alleging that school officials have failed to stop a white student from repeatedly and openly calling him the n-word. According to S.W.’s mother, Sumayyah Waver, school administrators are aware of the problem but have not stopped it.

The federal court suit contends that S.W. is being forced to attend school “in a racially hostile classroom environment.” Waver contends that S.W.  was disciplined by school officials after she and S.W. complained about the racial harassment. S.W.’s attorney Nakisha Chaney said,”Since early September 2015, a Caucasian classmate openly calls S.W. ‘n—–,’ in the classroom, often on a daily basis.”

The suit claims S.W. and his mother have complained to his teacher, the principal and administrators, all of whom have failed to prevent the racial slurs. The legal complaint states:  “Ms. Waver responded that ‘this has got completely out of control’ and expressed concern that (her son) would be penalized for opposing his Caucasian classmate’s reference to him as a (n——),’ stating, ‘(Her son) will get a level drop for yelling at (the other student) to stop, but something needs to be done about (her son) being called a n—– daily.'”

The suit alleges that the verbal abuse continues even as school officials claim they are working on a plan. It contends S.W. “has suffered because of his and his mother’s complaints, including being suspended, falsely accused of misconduct and stripped of behavioral ‘points’ that affect his eligibility for privileges and class placement.” The suit also claims S.W. has been disciplined on a number occasions for reacting to the slurs.

Source: mlive, 2/4/16, By John Agar

[Editor’s Note: In January 2012, Legal Clips summarized a decision by the U.S. Court of Appeals for the Sixth Circuit in Williams v. Port Huron Sch. Dist. holding that individual school administrators and school board members are entitled to qualified immunity from a suit brought by a group of African-American students’ parents alleging that the defendants violated the students’ equal protection rights by acting with deliberate indifference to student-on-student racial harassment. The panel’s majority concluded that the students failed to establish a violation of their constitutional rights based on the school administrators’ deliberate indifference to the harassment because they could not show that the administrators’ response “to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.”]

Former assistant principal’s suit claims Tennessee district forced him to resign after being called to active military duty

Culen Keith Robinson, who was employed by the Clarksville-Montgomery County School System (CMCSS) as an assistant principal, has filed suit against the school district, reports The Leaf-Chronicle, alleging that he was forced to resign in violation of his rights under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Robinson, a lieutenant colonel in the U.S. Army Reserve, was called to active duty in August 2010.

According to the lawsuit — filed in the U.S. District Court Middle District of Tennessee — Robinson was pushed to resign from his position by then-Chief Human Resources Officer Bruce Jobe, who retired from his position at the end of 2011.

The lawsuit indicates that Jobe “contacted her [Robinson’s wife] and very rudely and unprofessionally advised her that he had an assistant principal sitting at home who was not on duty and was in Clarksville at the time.” Robinson alleges that he then contacted Jobe through email to inform him that he was on military orders. He and Jobe had “a tense back and forth,” which led to his fear that if he did not resign his position “his teaching license would be taken and his career in education ruined.”

According to Robinson, sometime around Sept. 3, 2010, he received an email from Jobe that said he needed Robinson to resign, so he could staff the position with someone else, and that his resignation was accepted.

However, CMCSS disputes the series of events leading up to Robinson’s resignation as presented by the plaintiff and denies making any “willful attempt” to violate the Uniformed Services Employment and Reemployment Rights Act of 1994.

According to the CMCSS narrative, Robinson had provided the school system with his orders directing him to Fort Buchanan, Puerto Rico, for a period of 50 days and was anticipated to return to work Sept. 9, 2010.

CMCSS claims that on Sept. 2, Jobe contacted the plaintiff’s home to find out if he would be returning by Sept. 9 or if his leave of absence would need to be extended past his expected return date.

According to CMCSS, Jobe received email correspondence from Robinson the next day, in which the plaintiff said “he could not reveal any information about his leave to his employer” without the risk of disclosing classified information, and told Jobe that CMCSS could give his position “to someone else.”

Source: The Leaf-Chronicle, 1/27/16, By Alexander Harris

[Editor’s Note: In November 2013, Legal Clips summarized a U.S. Department of Justice (DOJ) press release published by eNews Park Forest announcing that the Warren Count, N.C., Board of Education (WCBOE) had entered into a settlement agreement with DOJ resolving a lawsuit filed on behalf of Army Reserve soldier Dwayne Coffer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The settlement lays to rest allegations that WCBOE had willfully violated USERRA by not renewing Coffer’s employment contract in 2008.]

Missouri legislature considering bill that would require students to use restrooms corresponding to their biological gender

According to an Associated Press (AP) report on 41 KSHB, Missouri state Sen. Ed Emery is sponsoring a bill that would require a student to use the restroom, locker room and showers of the gender indicated on their birth certificate and identified at birth by his or her anatomy. “If you had a daughter, you might not feel that she was completely safe if young men were allowed into her shower room,” Emery said. The bill also requires schools to accommodate students who assert, with their parents’ permission, that their gender is different from what’s listed on their birth certificate.

The Missouri School Boards Association (MSBA) has proposed two policy guides for local school districts on the subject. One allows transgender students to use restrooms and locker rooms associated with their gender identity and another doesn’t. MSBA chief of staff Brent Ghan said, “The law remains very unsettled on this issue.”

However,  the federal government has made its position on this issue clear: Transgender students should be allowed to use facilities that correspond with their gender identity.

Source: 41 KSHB, 2/1/16, By AP

[Editor’s Note: MSBA’s policy guidance on accommodating transgender students points out that there is no current Missouri or federal statute or regulation that explicitly protects transgendered persons, and because the issue is so new, there is little case law to guide districts on how to best serve this population. In regard to restrooms and locker rooms, the guidance states:

Because the OCR and the DOJ are charged with enforcing federal civil rights laws and because districts are more likely to be successfully sued for failing to accommodate a transgender student rather than not, MSBA recommends allowing transgender students to use the restrooms and/or locker rooms of the sex with which they identify. Failure to do so could result in an OCR or DOJ investigation or a potential lawsuit claiming gender discrimination. Regardless, it is incumbent upon the district to ensure all students are safe and are treated fairly. One option several districts have used is to allow any student who has a privacy or safety concern to use a unisex or more private bathroom such as the one in a nurse’s office. Again, because the law is not settled, MSBA encourages districts to contact their private attorney when dealing with this issue.

In November 2015, Legal Clips summarized an article by The Daily Statesman reporting that the Dexter School Board has adopted a policy addressing the accommodation of transgender students. After reviewing the transgender student policy drafted by the Missouri School Board Association (MSBA) and one drafted by the Missouri Consultants for Education (MCE), Superintendent Mitch Wood recommended the MCE policy. The board approved Wood’s recommendation.]

Florida district hit with disability discrimination suit

The parents of four autistic students are pressing their claim in federal court that Broward County School District (BCSD) is violating federal disability law because district officials refuse to consider providing the “gold standard” of therapy for the students, says the Sun Sentinel. They also allege BCSD has a “policy of segregation” that automatically places autistic children in specialized schools.

The parties recently presented their arguments to U.S. District Court Judge Kenneth Marra. The litigation comes two weeks after activists and parents accused district administrators of failing special needs children.

In 2014, a BCSD-commissioned report found multiple deficiencies in the Exceptional Student Services program, which serves about 30,000 children with physical, emotional and learning disabilities. The report by Evergreen Solutions found problems including insufficiently trained staff, long bus rides and high special ed student to teacher ratios.

In the federal court case, parents said they requested their children receive Applied Behavior Analysis as part of their schooling. The data-based therapy, which the children had started at age 2, uses positive reinforcement to teach social, language and other skills.

Michael Kelley, executive director of the Scott Center for Autism Treatment, testified that the therapy can have a major impact on children with autism. He said studies have shown that in 50% of cases, those who receive it are indistinguishable from other children by first grade. “It’s the gold standard,” Kelley said. “It’s the thing that’s been shown to work.”

Parents contend they were deprived of the ability to meaningfully participate in creating their children’s Individualized Education Programs, plans that spell out a special needs child’s learning needs and how they will be met. The suit also alleges administrators recommended placing the children in private schools solely for autistic students rather than in mainstream programs.

BCSD’s attorneys counter that administrators created specially designed programs for the students and that an administrative law judge sided with the district when the father of three of the children challenged the decision. They assert the therapy the parents requested is included in the district’s instructional methods. The attorneys argue Applied Behavior Analysis should not be written into the students’ education plans because then teachers would be held to it even if they found a more effective methodology.

Source: Sun Sentinel, 2/2/16, By Brittany Shammas

[Editor’s Note: In February 2013, Legal Clips summarized a decision by A Bergen County Superior Court in J.T. v. Dumont Pub. Sch. holding that a school district had not failed to provide disabled students receiving special education services with reasonable accommodations in violation of the New Jersey Law Against Discrimination (NJLAD) when the district assigned those students to one school, rather than assigning each to their neighborhood school. Relying on the same analytical framework used to examine reasonable accommodation claims under the federal Americans with Disabilities Act (ADA), the Superior Court found that the plaintiffs were unable to show that they were “denied a cognizable benefit or program.” It concluded that the students were receiving all the programs, activities, and benefits to which they are entitled as a result of their disabilities.] 

 

 

Texas Supreme Court reinstates cheerleaders’ free speech suit over display of religious banners at high school football game

The Dallas Morning News reports that the Texas Supreme Court has ruled that a group of cheerleaders can proceed with their suit against Kountze Independent School District (KISD) alleging the school district’s ban on the cheerleaders displaying banners with religious messages at high school football games violated their First Amendment free speech rights. The suit was dismissed in 2014 after KISD lifted the prohibition on the banners. The cheerleaders appealed to the state supreme court.

The cheerleaders’ attorney argued to the Texas Supreme Court that the claim was still valid because KISD could reinstate the ban at anytime. Texas Attorney General Ken Paxton applauded the decision, saying:

Religious liberty, deemed by our nation’s founders as the ‘First Freedom,’ is the foundation upon which our society has been built. I’m pleased the Texas Supreme Court has ensured that the Kountze cheerleaders will be able to continue defending their right to express their faith – the most fundamental of American freedoms.

Source: The Dallas Morning News, /29/16, By Bobby Blanchard

[Editor’s Note: The Texas Supreme Court’s opinion in Matthews v. KISD held that KISD’s voluntary abandonment of its ban on the display of the religiously themed banners did not moot the free speech claim because the District’s voluntary abandonment here provides no assurance that “the District will not prohibit the cheerleaders from displaying banners with religious signs or messages at school-sponsored events in the future.”

In August 2014, Legal Clips summarized an Associated Press article from dallasnews.com reporting that a group of high school cheerleaders from southeast Texas asked the state Supreme Court to rule on whether banners emblazoned with Bible verses that they display at football games is protected free speech. The cheerleaders had filed a lawsuit against the KISD after it had initially said the Christian-themed banners could not be displayed following a complaint by the Freedom From Religion Foundation in 2012 that sought to have them banned. KISD later allowed the banners, but said it retained the right to restrict their content as it viewed them not as private speech but as government speech.]

 

South Dakota legislature considering bill restricting transgender students’ access restroom facilities

The South Dakota House State Affairs committee has approved House Bill 1008 (HB 1008), reports SDPB Radio, which will restrict transgender students from using facilities designated for people with the opposite physical sex. State Rep. Fred Deutsch, who is the prime sponsor of the legislation, says HB 1008 protects the privacy of all students.

“If a transgender student needs to go to the bathroom, for example, and they’re a biologic female, they could go to any bathroom they wanted to that was with biologic females or they could go to a bathroom that the school district said you can use through their accommodation process,” Deutsch says. “For example, maybe they’re allowed to use a faculty restroom or maybe the school has a transgender restroom.” Deutsch says control rests with local schools to determine what bathroom and locker room accommodations are “reasonable” for transgender students.

Libby Skarin with the ACLU opposes the bill. She says transgender students want the same rights as everyone else. “Generally I do think that it is really important to recognize that restrooms and locker rooms can be a place of discomfort for a lot of students and not just those who are transgender, right? And schools do have an obligation to ensure that their facilities protect privacy, but they can do this in a way that doesn’t harm these already marginalized students,” Skalin says. “So, for example, they could ensure that they have lockable private bathroom stalls, lockable private changing and shower stalls in locker rooms, or privacy curtains that any student could use if they felt they didn’t want to dress in front of others or shower in front of others.”

Members of the House State Affairs committee say schools are asking for guidance on managing restrooms and locker rooms for transgender students.

Source: SDPB, 1/25/16, By Kealey Bultena

[Editor’s Note: In August 2015, Legal Clips summarized an article in the Argus Leader reporting that the South Dakota legislature’s High School Activities Association Interim Committee voted 6-5 to draft a bill that would require transgender high school athletes to apply for activities based on the sex listed on their birth certificate. If enacted this would change the South Dakota High School Activities Association (SDHSAA) policy that currently allows transgender athletes to enroll in sports based on the gender with which they identify.]

 

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