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Texas district hit with lawsuit over lack of Asian-American representation on school board

Pankaj Jain, who is originally from India, has filed a lawsuit in federal district court against Coppell Independent School District (CISD), reports The Dallas Morning News, alleging that the way it elects its board members leaves Asian-Americans disenfranchised in a district in which they represent a majority of the population. “The Asian-American population in Coppell represents a huge part of the Coppell ISD student population, and yet these students and their community are denied representation on this school board,” said Jain.

CISD elects its school board members through an at-large process. The suit claims that the district’s method dilutes the minority vote and allows whites to vote in a bloc because candidates are elected by the entire voting population instead of voters in smaller geographic areas within the district.

The lawsuit calls for single-member voting districts in CISD like those that have been established after similar suits in other Texas school districts. “Our client believes that Coppell ISD is unfairly denying the local Asian-American community an equal opportunity to participate in the electoral process,” said William A. Brewer III, Jain’s lead counsel. “Our hope is that the school board’s leadership will recognize its responsibility to embrace a more inclusive future — one that provides representation for the largest demographic group enrolled in the school system.”

The district’s Asian population surpassed 41% this year, making it the largest ethnic population enrolled in Coppell schools, according to the Texas Education Agency. Whites make up about 38% of the approximately 12,000-student population, while Hispanics make up 13% and blacks 5%.

The lawsuit comes down to more than just minority representation, Brewer said. “It starts with that, and that’s how you ultimately make change in a diverse community, but it’s also about the misallocation of resources,” he said.

The Asian population also is under-represented among school faculty, the lawsuit claims. Only two Asian-American teachers were employed at Valley Ranch Elementary in North Irving during the 2014-15 school year, even though Asians make up 80% of the school’s enrollment, the lawsuit states.

The district also is falling short on its dual-language programs, according to the lawsuit. Several elementary and middle schools offer immersion courses in English and Spanish, but none in any of the five common Indian languages spoken by approximately 392 English Language Learners — a group larger than the 336 ELL students who speak Spanish, the lawsuit claims.

Source: The Dallas Morning News, 9/22/16, By Loyd Brumfield

[Editor’s Note: Usually suits challenging the method of local school board elections have alleged that African-American or Hispanic voters are being disenfranchised. In August 2016, Legal Clips summarized an article in The Atlanta Journal-Constitution reporting that voting rights advocates had filed a federal lawsuit against Gwinnett County, seeking to overturn county commission and school board districts they say have been drawn to thwart minority voters. The suit alleges that minorities in the county have been prevented from electing candidates of their choice even though they collectively constitute a majority of county residents. No minority candidate has ever been elected to the Gwinnett County commission or school board.]

Federal district court rules that Indiana district’s Christmas program that combined religious performances with secular performances did not violate the Establishment Clause

Freedom From Religion Foundation v. Concord Cmty. Sch., No. 15-00463 (N.D. Ind. Sept. 14, 2016)

Abstract: A federal district court in Indiana has ruled that a high school’s winter holiday show as performed in 2015, which included a passive Nativity scene and religious themed songs, did not violate the Establishment Clause of the First Amendment of the U.S. Constitution. The district court applying three separate, but related, tests determined that the show as performed in 2015 did not constitute endorsement of religion, that it did not coerce students into participating in a religious exercise, and that it had a secular purpose. With regard to Establishment Clause claims related to the 2014 show and the 2015 proposed show, it ordered the parties to submit supplemental briefs in order to determine if those claims were still alive and what remedy would be appropriate if they are still alive.

Facts/Issues:  For over four decades Concord High School (CHS) has presented a winter holiday program known as the “Christmas Spectacular.” The Christmas Spectacular typically includes performances from two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. It also includes dance teams, students from the drama program, stage technicians, and involves over 600 students in total. The Christmas Spectacular is performed five times each year, including four public performances over a weekend, and a school-day performance for younger students in the district on a Friday.

The show runs about 90 minutes. The part of the show that has become the focus of the current litigation runs about 20 minutes. It includes a medley of ten different songs, each listed in the program under the heading “The Story of Christmas.” Each of the songs sung during this medley are religious hymns or carols with a Christian influence.

This segment begins with an announcement that states: “[l]adies and gentlemen: As we now present the Story of Christmas … .” Thereafter, a faculty narrator, reading from a script, tells the story of the birth of Jesus, reciting portions of the story as it appears in the Bible. Beginning with the fifth song, a Nativity scene appears on stage, portrayed by student performers dressed in appropriate costumes and standing in a Nativity set. Once they take their positions in the nativity scene, the students stand still and remain in that position for the final twelve minutes of the show.

In 2015, the Freedom From Religion Foundation (FFRF) filed suit against Concord Community Schools (CCS), in federal district court, on behalf of Jack Doe, a student at CHS, and his father John Doe. After the Does filed suit, CCS modified the Christmas Spectacular program by omitting the narration that included the Bible readings. It also added songs pertaining to Chanukah and Kwanzaa in the second half of the show. The Chanukah and Kwanzaa segments were likely to last three or four minutes each, while the Christmas segment, as before, was to last about twenty minutes, with the Nativity scene on stage for the final twelve minutes of that segment.

FFRF’s suit contended that the inclusion of a living Nativity scene and Bible readings as part of the Christmas Spectacular violated the Does’ First Amendment rights under the Establishment Clause. The suit asked that CHS omit the Nativity scene and Bible readings from that year’s Christmas Spectacular. FFRF filed a motion for a preliminary injunction to enjoin the performance of the live Nativity scene and the Bible readings. Because CHS had decided not to include the Bible readings as part of the show, FFRF just asked for the court to enjoin the living Nativity scene.

The district court issued a preliminary injunction prohibiting the school district from including its living Nativity segment in the holiday program at the high school. It concluded that the plaintiffs, a student and his father, had shown a likelihood of succeeding on the merits of their claim that inclusion of the living Nativity in the program constituted endorsement of religion in violation of the First Amendment’s Establishment Clause. The court also concluded that the plaintiffs had shown that the equitable factors and balances weighed in their favor.

CHS, in compliance with the order that the federal district court issued granting FFRF’s motion for a preliminary injunction, held its “Christmas Spectacular” without a live Nativity scene. Instead CHS presented a static Nativity scene using life-sized figurines. School officials adhered to the language in the court’s injunctive order, which prohibited CHS from “organizing, rehearsing, presenting or intentionally allowing to be presented any portrayal of a Nativity scene that is composed of live performers as part of its 2015 Christmas Spectacular shows.”

After the 2015 show, FFRF amended the legal complaint to assert Establishment Clause challenges against each of those three versions of the show—the show as it was performed in 2014 (and previous years); as it was proposed in 2015, prior to the preliminary injunction; and as it was actually performed in 2015. Both parties filed cross-motions for summary judgment.

Ruling/Rationale: The district court granted the school district’s motion for summary judgment on FFRF’s claim that the 2015 show as performed violated the Establishment Clause. The court placed the claims regarding the 2014 show and the proposed 2015 show under advisement, ordering CCS and FFRF to submit supplemental briefing on the issue of mootness. It also ordered FFRF to submit supplemental briefing as to the appropriate remedy, if any, for the alleged violations.

Addressing the issue of mootness, the court found that the parties’ filings to date were “inadequate to resolve this issue.” While acknowledging that a case could become moot because a party ceases the challenged activity on its own accord, it indicated that “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” It stressed that only when there is no question that the wrongful activity cannot reoccur “will a case become moot by voluntary cessation.”

The court noted that even though CCS has asserted “it will not return to the pre-2015 program,” it has failed to produce any evidence supporting that assertion. Citing Doe v. Elmbrook Sch. Dist., 658 F.3d 710 (7th Cir. 2011), it emphasized that “the lack of a present intent to resume the challenged conduct is not equivalent to a commitment not to resume that conduct.” It also stressed that the fact that CCS modified its 2015 show was insufficient on its own to render the challenge to the previous versions of the show moot.

The district court, therefore, concluded that at the present time CCS had not “met its heavy burden of establishing that the claims for prospective relief as to the 2014 and proposed- 2015 shows are moot due to voluntary cessation.”

It stated: “Accordingly, the Court directs the parties to submit supplemental briefs as to whether the Plaintiffs’ claims for prospective relief as to the 2014 and proposed-2015 shows are moot. The parties should also submit any additional evidence pertinent to that issue.”

It also directed the parties to address the claim for nominal damages as to the 2014 show in their supplemental filings.

The district court next turned to the question of whether the 2014 and proposed-2015 shows require additional briefing as to what remedy should be awarded if those claims are resolved on their merits in the FFRF’s favor. It directed “the parties to submit supplemental briefs addressing whether a permanent injunction is warranted if Plaintiffs prevail on these claims on their merits, and, if so, what specific injunction should issue.”

The court then addressed the merits of FFRF’s claim alleging that the 2015 Christmas show as performed violated the Establishment Clause. It applied the secular purpose test, the endorsement test and the coercion test, as outlined in Lemon v. Kurtzman, 405 U.S. 602 (1971), to determine whether the 2015 show as performed passed constitutional muster.

The district court began its analysis with a discussion of the endorsement test’s application to the 2015 show as performed. It stated that courts specifically ask “whether an objective, reasonable observer, ‘aware of the history and context of the community and forum in which the religious display appears,’ would fairly understand the display to be a government endorsement of religion.” It also noted that religious displays in classrooms “tend to promote religious beliefs, and students might feel pressure to adopt them.”

The district court acknowledged that when it issued the preliminary injunction it found that the living Nativity scene was improper. However, it stressed that it was “not because living nativity scenes are categorically impermissible, but because the context and extent of that particular presentation would convey an endorsement of religion.”

The court rejected FFRF’s argument that the only change from the proposed 2015 show and the one performed was the elimination of the living Nativity scene by replacing student actors with mannequins. It pointed out that in addition to eliminating the living Nativity scene, the scene was only on stage for under two minutes, while a single ensemble performed a single song. The court said, “Those changes fundamentally altered the nativity scene’s role in the show as compared to previous versions.”

The district court found that the 2015 show as performed limited the focus on the nativity scene in both terms of time, stage and elaboration. It found that as presented the Nativity scene “did not stand out from any other portion of the show.” Because the 2015 performance did not single out the nativity scene, it was presented on par with each of the other performances.

The court concluded: “Under those circumstances, even though the nativity scene is undoubtedly religious in nature, a reasonable observer would not perceive the show as expressing a preference for the nativity scene or endorsing its religious message.” It indicated that unlike previous performances, the 2015 show eliminated the narrative of the story of Jesus’ birth, which decreased the likelihood of a religious message being conveyed.

The district court found that by eliminating most of the religious cues, such as the songs, an observer would most likely perceive the remaining songs “as a number of mostly-familiar songs that relate to Christmas.” It also stated that “the show’s inclusion of Chanukah and Kwanzaa, and its spoken introductions of each of the holidays, further served to place those performances in a secular context.”

The court rejected FFRF’s contention that the wording of the introductions demonstrated a preference of Christianity. Instead, it concluded “[t]he introductions were each about the same length and included details about the background and celebration of the respective holidays, and adequately conveyed their educational messages.” According to the court, “[T]he student-read introductions underscored that the performances during this portion of the show were meant to observe holidays celebrated by different cultures and religions, and thus conveyed a message of inclusion and education rather than endorsing the religious or cultural content of any of the performances.”

Lastly, the district court determined that a reasonable observer would be presumed to have knowledge of the history of the annual event. It was the court’s belief that such an observer of the 2015 show would “perceive substantial changes in comparison to those shows; changes that fundamentally altered the character of the show and the message it conveys.” It also stated that the “same would be true even when comparing the actual 2015 show to the proposed show.”

The district court next applied the coercion test. Citing Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (Elmbrook II), it found that endorsement and coercion are “two sides of the same coin, i.e. government endorsement of religion applies indirect pressure on religious minorities to conform to the majority view.” The court concluded: “[h]ere, for the reasons just discussed, the Court does not find that the Christmas Spectacular as performed in 2015 endorsed religion, so the performers and audience members would not have been subjected to any indirect coercive pressure to conform to Christianity under that theory.” In addition, it found that given the manner in which the nativity scene was presented so as to avoid endorsing religion, “the performers who were singing while the nativity scene was on stage would not have reasonably felt as if they were being coerced to celebrate a religious message through their performance.”

Finally, the district court applied the secular purpose test. It found the 2015 show as performed, including its religious elements, demonstrated a secular purpose. It found the religious performances were blended with the secular ones in a performance celebrating the season rather than any religious beliefs. The court said, “Moreover, despite the religious content of the previous shows, that history does not necessarily reflect the absence of a secular purpose.” It concluded:

[T]he Court finds that the Christmas Spectacular that was actually presented in 2015 had secular purposes, and thus satisfied Lemon’s purpose prong, too. Accordingly, having found that the Christmas Spectacular satisfied each of the Establishment Clause tests at issue, the Court concludes that the show did not violate the Establishment Clause.

Freedom From Religion Foundation v. Concord Cmty. Sch., No. 15-00463 (N.D. Ind. Sept. 14, 2016)

[Editor’s Note: In December 2015, Legal Clips summarized an article in The Elkhart Truth reporting that CHS, in compliance with the letter of a federal district court order, held its “Christmas Spectacular” without a live Nativity scene, instead presenting a static Nativity scene using life-sized figurines. School officials adhered to the language in the court’s injunctive  order, which prohibited CHS from “organizing, rehearsing, presenting or intentionally allowing to be presented any portrayal of a Nativity scene that is composed of live performers as part of its 2015 Christmas Spectacular shows.”]


21-state coalition is challenging the U.S. Dep’t of Labor’s new overtime rule

A 21-state coalition, led by Texas and Nevada, has filed suit in federal court against the federal government challenging the U.S. Department of Labor’s (DOL) new overtime rule, says The Texas Tribune. The rule doubles the salary threshold under which workers qualify for overtime pay, from $455 per week to $913 per week. DOL estimates the rule will benefit an additional 4.2 million workers.

Texas Attorney General Ken Paxton has joined forces with his counterpart in Nevada, Adam Laxalt, to file the lawsuit on behalf of the 21 states. Paxton said the rule is another example of President Obama “trying unilaterally [to] rewrite the law.” Paxton warned the rule “may lead to disastrous consequences for our economy.”

Critics of the rule say it will place a new burden on businesses, potentially forcing them to demote or lay off workers to whom they cannot afford to pay more money. “The numerous crippling federal regulations that the Obama administration has imposed on businesses in this country have been bad enough,” Paxton said. “But to pass a rule like this, all in service of a radical leftist political agenda, is inexcusable.”

DOL Secretary Tom Perez responded to the Texas-led lawsuit with a statement expressing confidence in the legality of the rule. He suggested that efforts to stop it were partisan. “Despite the sound legal and policy footing on which the rule is constructed, the same interests that have stood in the way of middle-class Americans getting paid when they work extra are continuing their obstructionist tactics,” Perez said.

The Texas-led lawsuit also drew criticism from labor groups and their allies in Texas. The state chapter of the AFL-CIO called the lawsuit a “backward-gazing insult” to workers, while the state Democratic Party said it shows Texas Republicans are more interested in “scoring political points” against Obama.

The lawsuit specifically claims that the rule is too broad because it is based on the salary threshold. Such a requirement, the states argue, overlooks the fact that some workers in the salary range perform management duties that would make them ineligible for overtime. The states are seeking an injunction to prevent the rule from taking effect. Texas and Nevada are being joined in the lawsuit by Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Utah and Wisconsin.

Source: The Texas Tribune, 9/20/16, By Patrick Svitek

[Editor’s Note: The states’ legal complaint contains five counts:

(1) Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules at Issue Are Unlawful by Violating the Tenth Amendment.

(2) Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules at Issue Are Unlawful by Exceeding Congressional Authorization – Salary Basis Test, HCE Compensation Level, and Indexing.

(3) Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules at Issue Are Being Imposed Without Observance of Procedure Required by Law – Indexing.

(4) Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules at Issue Are Arbitrary and Capricious.

(5) In the Alternative: Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules at Issue Are Unlawful by Improperly Delegating Congressional Legislative Power.]

Following a hearing on Ohio district’s motion for a preliminary injunction in suit over federal government’s transgender student guidance, federal district court judge vows to issue ruling soon

The Columbus Dispatch reports that U.S. District Court Judge Algenon L. Marbley has said he will rule within a week on Highland Local School District’s motion for a preliminary injunction, seeking to prevent the U.S. Department of Education (ED) from imposing financial sanctions on HLSD unless it complies with ED’s Title IX guidance that provides transgender students access to school facilities based on gender identity. During the hearing on the motion, Alliance Defending Freedom (ADF) attorney Doulgas G. Wardlow, representing HLSD, argued that Title IX, which prohibits discrimination in any education program or activity receiving federal money, said that “sex” means a person’s biological gender — male or female.

Judge Marbley questioned whether the act really says that, and added, “It’s still male and female. (Jane) Doe still considers herself a female.”  A person’s gender identity “is not dictated by their gender activity,” said Wardlow. “You’re arguing that the only test is ‘drop your trousers,'” the judge said.

Wardlow said the issue is a student’s, in this case a female student’s, expectation of privacy, which begins as soon as she enters the bathroom. Judge Marbley said no one would know a transgender student was there without getting down and peeking under the stall divider. The case involves one student, Marbley said. “We don’t have a flood of transgender students in the Highlands school district saying, ‘[m]e, too.'”

The judge asked Spencer E. Amdur, of ED, about HLSD accommodating Jane Doe by allowing her to use a private bathroom in the teachers’ lounge. “There is a stigma to having to walk to the teachers’ lounge to use the bathroom,” Amdur said. He also indicated that there is a stigma attached to being treated differently than other female students.

Jane Doe has requested a separate injunction ordering the school district to allow her to use her female name and the girls’ bathroom. Judge Marbley asked Jane Doe’s attorney, Asaf Orr, “What about those who don’t want to share a bathroom with someone with a penis?” “Jane Doe enters the bathroom as a girl and the stall provides privacy,”  said Orr, a lawyer with the National Center for Lesbian Rights. “All showers in the school have curtains, and the bathrooms have stalls,” he added.

The judge didn’t issue a ruling immediately following the hearing because there was no indication that the federal government was threatening an immediate enforcement action against HLSD.

Source: The Columbus Dispatch, 9/21/16, By Earl Rinehart

[Editor’s Note: In June 2016, Legal Clips summarized an article in The Columbus Dispatch reporting that HLSD had filed suit against the federal government in federal court, after ED threatened to begin an enforcement action unless the school district allowed a transgender grade school student to use the restroom that reflects the student’s gender identity by June 28. The suit, which was filed by ADF on behalf of HLSD, is seeking a court order prohibiting ED officials from taking action.]

Federal district court grants transgender student’s motion for a preliminary injunction, ordering Wisconsin district to allow student to use boys’ bathroom

U.S. District Court Judge Pamela Pepper granted transgender student Ashton Whitaker’s motion for a preliminary injunction, reports the Kenosha News, ordering Kenosha Unified School District (KUSD) to allow him to use the boys’ restroom. The injunction takes effect immediately, but only applies to bathrooms, so Whitaker is still unable to use the school’s male locker rooms.

Joseph Wardenski, one of Whitaker’s attorneys, said, “The case certainly isn’t over, but we’re happy the (the judge) saw the harm to him is real and recognize the (district’s) discriminatory decision.” The decision came the day after Judge Pepper denied a motion to dismiss Whitaker’s discrimination lawsuit against KUSD.

KUSD’s attorneys said they plan to appeal the ruling to the U.S. Court of Appeals for the Seventh Circuit. “We’re disappointed in the judge’s ruling,” said Ronald Stadler, one of KUSD’s attorneys. “The legal issue is something the Seventh Circuit is going to have to resolve. I think when we take it up there we have a substantial likelihood of winning.”

Whitaker’s team had to show Pepper that he would suffer “irreparable harm” by continuing to use a gender-neutral, sole-occupant bathroom during school hours. According to Wardenski, stress over the issue had caused Whitaker physical, educational and psychological harm. Wardenski said the teen suffers from post-traumatic stress, lower academic performance, anxiety and depression, among other things.

However, Stadler said Whitaker probably is not suffering irreparable harm and that if he was, it would not be because of the bathroom issue. He also expressed concern about the impact of the injunction on other students who may not feel comfortable with Whitaker in the boys bathroom. “There are privacy issues,” he said. “The School Board represents the community, and the community has said, ‘We have issues with allowing somebody to go into the boys room whose gender is not that of being a boy.’ That’s policy decision; it’s not violative of the law,” Stadler said.

Judge Pepper sided with Whitaker, in part because the burden of proof is lower for preliminary injunctions and because she said there is little evidence that other students would be harmed by him using boys’ bathrooms. However, she spent time highlighting the dearth of clear guidance from the U.S. Supreme Court on the issue, and she acknowledged that similar lawsuits in other lower courts and states have had very different outcomes. “It sounds like there are a number of restrooms around the school if a student is uncomfortable,” she said. “If one walks in and finds Ash in the restroom then, of course, they’re free to make other choices. That’s just the choice that Ash doesn’t have.”

Source: Kenosha News, 9/20/16, By Daniel Gaitan

[Editor’s Note: In September 2016, Legal Clips summarized an article in the Milwaukee Journal Sentinel reporting that a federal district court has denied  Kenosha Unified School District’s (KUSD) motion to dismiss a suit brought by  transgender student Ash Whitaker alleging violation of his Title IX and Fourteenth Amendment equal protection rights because officials are prohibiting him from using the boys’ restroom. U.S. District Court Judge Pamela Pepper found that at this early stage of the case, Ash Whitaker has alleged enough facts to support a plausible violation of both Title IX or unlawful discrimination under the equal protection clause of the 14th Amendment.]


New York state court dismisses suit by eight small city districts claiming state is denying students in those districts their constitutional right to a “sound basic education”

An Associated Press (AP) article in the Niagara Gazette reports that New York Supreme Court (trial level) Justice Kimberly O’Connor has dismissed a suit claiming the state was shortchanging students in Niagara Falls and seven other small city school districts and denying their constitutional right to a “sound basic education.” While Justice O’Connor agreed that the students’ performance was “undeniably inadequate,” she concluded that the plaintiffs hadn’t proved that the state has not met its obligation to them.

The lawsuit was filed in 2008 on behalf of students in Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie and Utica, cities challenged by high rates of poverty, students with disabilities and English language learners. Niagara Falls Superintendent Mark Laurrie was one of two local officials to testify in the trial, which heard small city representatives offer evidence on a lack of teachers, support staff, programs and services for disadvantaged students. The level of disadvantaged youth is commonly judged by the number of free or reduced lunch recipients in a district. Former Falls Superintendent Cynthia Bianco said that 76% of Niagara Falls public school students receive the benefit.

The lawsuit accused the state of reneging on funding promises made after a Court of Appeals ruling in 2007 required the state to increase funding for New York City schools. After the ruling in the Campaign for Fiscal Equity lawsuit, the state reformed its statewide funding formula, but it hasn’t fully funded the new system while facing budget shortfalls. During an eight-week trial this year, administrators from the small city districts described shortages of teachers, technology and supplies, which they said hurt students and graduation rates.

The judge’s ruling said the state could adjust funding levels for school districts based on fluctuations in its fiscal condition and still deliver on its obligation to ensure students have access to an adequate education. It added that the state has been addressing issues raised by school districts with each state budget and other reforms.

O’Connor wrote that the performances of many of the students were unacceptable and “the educators, administrators, state actors and other employees of the school districts have a responsibility to see the reforms through to the end and improve the results for their students.” “However,” the judge wrote, “the action that is required is not in the form of a specific dollar amount, but is instead a blend of funding, oversight and proper allocation of resources by the districts.”

The Alliance for Quality Education, an advocacy group, said the decision would be appealed. It said the court had failed to thoroughly examine the facts.

Source: Niagara Gazette, 9/19/16, By Carolyn Thompson (AP)

[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) justice heard 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.]

Federal district court rejects Wisconsin district’s motion to dismiss transgender student’s suit claiming violation of his Title IX and equal protection rights

According to the Milwaukee Journal Sentinel, a federal district court has denied  Kenosha Unified School District’s (KUSD) motion to dismiss a suit brought by  transgender student Ash Whitaker alleging violation of his Title IX and Fourteenth Amendment equal protection rights because officials are prohibiting him from using the boys’ restroom. U.S. District Court Judge Pamela Pepper found that at this early stage of the case, Ash Whitaker has alleged enough facts to support a plausible violation of both Title IX or unlawful discrimination under the equal protection clause of the 14th Amendment.

KUSD, in its motion to dismiss, argued that the term “sex” as considered under Title IX did not cover a transgender student, and the suit should be dismissed. Title IX refers to the 1972 law that prohibits discrimination, based on sex, in federally funded education programs. However, Judge Pepper cited a variety of common definitions of the term, and how it has been considered in other cases, such as those alleging discrimination in the workplace, to conclude that “transgender” has not clearly been excluded from the definition for purposes of discrimination claims.

Whitaker’s suit claims that school officials in violation of federal law are prohibiting him from using school facilties based on gender identity. He also asserts KUSD officials have engaged in other actions, which have amounted to unlawful sex discrimination under Title IX, and deprived him of equal protection under the Fourteenth Amendment.

Use of his birth name and female pronouns was another practice Whitaker sought to stop by court order. But attorneys said that Whitaker legally changed his first name to Ashton last week, and KUSD’s attorney, Ronald Stadler, said the district would honor that court order and change all of Whitaker’s school records to reflect that. Stadler also said that Whitaker’s claim that the district planned to make any transgender students wear a green wristband was never intended, proposed or implemented.

The lawsuit says district officials denied him access to the boys’ restrooms, intentionally and repeatedly used his birth name and female pronouns to identify him; instructed guidance counselors to issue bright green wristbands to Whitaker and any other transgender students to more easily monitor their bathroom use; and required him to room with girls on overnight school trips.

One of Whitaker’s attorneys, Joseph Wardenski, said after the hearing that his client is still technically banned from the male restrooms at Tremper High School. He said Whitaker tries to minimize the need to use a restroom, and when he must, often “goes where he wants to go.”

Source: Milwaukee Journal Sentinel, 9/19/16, By Bruce Vielmetti

[Editor’s Note: In July 2016, Legal Clips summarized an article in the Kenosha News reporting that Kyle Flood, a former member of KUSD’s board, requested that the school board place transgender student Ash Whitaker’s lawsuit on the annual meeting agenda for September. Flood was joined by Gayle Clark-Taylor, a retired KUSD elementary school counselor, in making the request at a school board meeting. Flood said putting the lawsuit on the annual meeting agenda would allow the public to direct the board’s action regarding the lawsuit. “This must be up to the people of Kenosha,” Flood told the board.

The district court’s order denying the motion to dismiss is not available at this time. The editor’s note will be updated when the court document becomes available.]

Oregon district settles employee’s sexual assault suit for $250,000

Portland Public Schools’ (PPS) board, in a 4-3 vote, has agreed to pay $250,000 to settle an employee’s suit claiming that he was sexually assaulted by a coworker, says The Oregonian. The board also directed the district’s new interim superintendent to scrutinize the district’s complaint process and assigned the board’s audit committee to assess how complaints are handled.

The unnamed employee filed suit in August 2015 accusing longtime coach and athletics administrator Mitchell Whitehurst of inserting “his finger or some other unknown object in, on or around (the employee’s) anus” while he was clothed and talking to another teacher.

The incident left Whitehurst with a criminal record. He pleaded guilty to misdemeanor harassment. The lawsuit also said Whitehurst was a known threat within the district, alleging that students had accused Whitehurst of sexual misconduct for years but that their complaints weren’t properly handled.

The district let Whitehurst retire, but the Oregon Teaching Standards and Practices Commission revoked his license after an investigation. The commission said it based its decision in part on an investigation of allegations of sexual misconduct against Whitehurst from the 1980s. The commission’s report noted that Whitehurst denied the allegations.

Board member Paul Anthony, who voted against settling the case, said a trial would have forced a public airing. Board members Steve Buel and Mike Rosen also voted against settling the case. Buel said he will continue to push for a review of how allegations against Whitehurst were handled.

Board vice chair Amy Kohnstamm said during the meeting that settling the case wouldn’t keep the district from examining how it handles complaints. She echoed board members in calling for a review of the district’s complaint system and stressed whatever process is in place should protect students.

All three “no” votes  were cast by board members who believe the settlement amount is too high. Anthony also said the $250,000 settlement amount, recommended by a mediator, indicated the mediator believed “the plaintiff could demonstrate that the district had a pattern of ignoring bad behavior, abusive behavior.”

Matthew Ellis, the attorney for the employee, released an email sent in 2013 by the principal at Faubion K-8, mentioning “30 years of rumblings” about Whitehurst and warned about “this becoming a ‘Penn State University’ scandal.” PPS has taken issue in court filings with the employee’s characterization of the allegations over the years and has said, while it received information about Whitehurst, the district acted appropriately under the circumstances.

Source: The Oregonian, 9/19/16, By Bethany Barnes

[Editor’s Note: In August 2014, Legal Clips summarized an article in the Herald-Tribune reporting that a federal district court in Florida had partially dismissed a lawsuit brought by a former school employee against the Manatee County School District (MCSD). Adinah Torres, formerly employed as a parent liaison at Manatee High School (MHS), filed an amended legal complaint alleging she and several students were sexually harassed by Rod Frazier, an assistant football coach at MHS, and that school officials retaliated against her when she reported the harassment.]

Michigan State Board of Education approves guidelines for accommodating transgender students’ use of school facilties on the basis of gender identity

According to MLive, the Michigan State Board of Education (MBE) has approved voluntary guidelines that aim to create a supportive environment for LGBT students, but which have drawn controversy for provisions surrounding bathroom and locker room use. The board approved the guidelines in a 6-2 vote. The guidelines recommend that school districts permit transgender students to use bathrooms or locker rooms that match their gender identity, although private accommodations should be made available for all students upon request. The guidelines also urge schools to adopt polices that protect LGBT students from harassment and to designate a staff member who can provide students with information or support related to LGBT issues.

Board members Eileen Weiser and Richard Zeile voted against the guidance. Weiser said she voted against the measure, in part, because the guidance is voluntary and no “paper is going to change hearts, minds or practices in schools.” She indicated that Leaders should create a system to tackle bullying as a whole, not a single policy for one group of marginalized students.

Republican lawmakers, as well as some parents, have argued that the guidelines would endanger children’s privacy and safety. They’ve also raised concerns over parental control, pointing to provisions — which have since been changed — stating that transgender “students have the right to decide when, with whom, and to what extent to share private information.” To address concerns, the MBE and the Michigan Department of Education (MDE) revised the guidance, emphasizing parental involvement and family engagement, officials said.

Kyle Guerrant, deputy superintendent of finance and operations at MDE, said the guidelines simply represent “best practices” that school districts can consider when implementing policies for LGBT students. “School communities get to have that conversation locally as to what makes sense for their school community,” he said. “I think that’s going to look different based on the community.”

John Austin, president of the MBE, said LGBT students are at greater risk of bullying, violence and suicide than heterosexual students. The guidance is important, he said, because it will help educators provide a more safe and welcoming environment, one where LGBT students will be less likely to miss school because they feel they’re victims of discrimination.

Data compiled by MDE shows that 11.7% of lesbian, gay and bisexual students missed school because they felt unsafe. That’s compared with 5.1 percent of heterosexual students. The state board’s guidance comes as similar federal guidelines  – also recommending that transgender students be allowed to use bathrooms and locker rooms that match their gender identity – were put on hold by a federal judge in Texas. The judge ruled that the administration “possibly misinterpreted federal law and failed to follow proper rule-making procedures.”

Source: MLive, 9/14/16, By Brian McVicar

[Editor’s Note: In April 2016, Legal Clips summarized a story from Michigan Radio reporting that more than 3,000 comments had been submitted online to MBE regarding its draft recommendations to local school districts on accommodating transgender students. MBE members said that the draft guidance was created after MBE received a number of requests from “schools and educators asking for recommendations of best practices in creating more supportive learning environments for LGBTQ students.”]


Federal court orders New York state district to pay over $68,000 in legal fees in settled Title IX softball field suit

U.S. District Court Judge William Skretny has ordered Batavia Central School District (BCSD) to pay $68,545.20 in legal fees to the Empire Justice Center (EJC), reports The Daily News. EJC filed a Title IX class action suit on behalf of several Batavia High School student-athletes and parents over disparities between the boys’ baseball facilities and the girls’ softball facilities.

BCSD Superintendent of Schools Chris Dailey said the school disagrees with the award of attorneys’ fees. “The lawsuit was simply unnecessary — and only served to waste taxpayers’ money,” Dailey said, citing that improvements to the playing fields had already been approved by the Board of Education before the lawsuit was filed, “and they were commenced immediately upon taxpayer approval of the funding.”

The suit settled in June 2014, with both parties agreeing on a plan that spent roughly $175,000 in district funds to build a new softball facility with permanent dugouts, good drainage, outfield fencing, a permanent electronic scoreboard and other amenities. According to the district, the lawsuit resulted in only one major difference from previous plans — a safety cap to the track and field fence that is adjacent to a JV field no longer in use.

Dailey said the district’s progress toward improvements at the filing of the lawsuit signaled a continuous commitment to its girls’ athletic program. “We are proud of our student athletic program and continuously work toward achieving equality across all sports,” Dailey said. “This is of paramount importance to the District.”

By settling, the plaintiffs were considered to have succeeded under federal civil rights laws that incentivize legal firms to provide no-cost representation to groups alleging discrimination. As the prevailing party, the Empire Justice Center could seek reimbursement for its costs from the school district. According to EJC attorney Jonathan Feldman, settling the legal fee issue outside of court was offered to the school, leading to presentations before the U.S. District Court’s Western District of New York last autumn.

Source: The Daily News, 9/9/16, By Jim Krencik

[Editor’s Note: In June 2014, Legal Clips summarized an article in The Daily News reporting that BCSD had settled a Title IX suit, brought by EJC in April 2013, on behalf of three softball players and their parents. The suit alleged that BCSD’s policy of renting Dwyer Stadium for all boys’ varsity baseball home games, while providing the girls with substandard playing fields at the school, violated Title IX of the Educational Amendments of 1972.] 

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