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California district settles lawsuit brought by student over banning of t-shirt that proclaimed her sexual orientation

According to an Associated Press (AP) report in The Orange County Register, Manteca Unified School District (MUSD) has settled a suit brought by Taylor Victor, a student at Sierra High School (SHS), alleging SHS officials violated Victor’s free speech by prohibiting her  from wearing a t-shirt at school captioned “Nobody Knows I’m a Lesbian.” MUSD has agreed to adopt a policy clarifying that students may wear clothing with statements celebrating their or their classmates’ cultural identities.

Victor and her mother, who were represented by the American Civil Liberties Union of Northern California (ACLU-NoCal), sued two SHS administrators who told the girl in August 2015 that her shirt was an improper display of sexuality that violated the school’s dress code and might be disruptive. “The law on this is very clear: public schools can’t censor the personal beliefs of students,” ACLU-NoCal attorney Linnea Nelson said. “The message of Taylor’s T-shirt expresses the most fundamental type of speech already protected by the First Amendment, the California Constitution and the California education code.” Under the terms of the settlement, SHS officials deny violating Victor’s free speech rights and they and MUSD deny any wrongdoing.

Federal courts have allowed some limits on student speech. The U.S. Supreme Court ruled in 2007 that an Alaska school acted within its discretion to discourage illegal drug use when it suspended a student who displayed a banner reading “Bong Hits 4 Jesus” at an Olympic torch relay. In 2014, the Ninth U.S. Circuit Court of Appeals, which has California within its jurisdiction, ruled that administrators at a Northern California high school plagued by racial strife lawfully banned T-shirts bearing the American flag while the campus commemorated “Mexican Heritage Day.”

Source: The Orange County Register, 2/17/16, By Lisa Leff (AP)

[Editor’s Note: In October 2015, Legal Clips summarized an article in Courthouse News Service reporting that a suit filed by a student, identified as T.V., and her mother, Heather Victor, alleged that two assistant principals at Sierra High School (SHS) sent T.V. home for wearing a t-shirt displaying the message “Nobody knows I’m a lesbian.”

In September 2014, Legal Clips summarized a decision by the U.S. Court of Appeals for the Ninth Circuit, sitting en banc (all active judges in the circuit participating), in Dariano v. Morgan Hill Unified Sch. Dist. denying the petition for a panel rehearing and rehearing en banc, and ordering that no further petitions be permitted. The three-judge panel issued an opinion amending its opinion filed on February 27, 2014. The panel held that school officials had not violated students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo because such displays might provoke ethnic based violence.]

Oklahoma federal district court upholds school district’s prohibition of Native American wearing eagle feather in graduation cap

Griffith v. Caney Valley Pub. Sch., No. 15-273 (N.D.Okla. Jan. 5, 2016)

Abstract: A federal district court in Oklahoma has ruled that a Native American student, who was prohibited from wearing an eagle feather on her graduation cap, failed to state a claim for violation of her First Amendment free speech rights. It also concluded that she failed to state a valid First Amendment free exercise of religion claim.

The court rejected the student’s assertion that the school district had created a limited public forum in the students’ graduation attire, thus making her expression private student speech. Instead, it held that the expression in question was school-sponsored speech and the school officials had enunciated a legitimate pedagogical concern for prohibiting decorations on graduation caps.

The court found the free exercise claim failed because the student had not presented any facts showing that the “no cap decoration” policy was applied or enforced against her for religious reasons.

Facts/Issues: Hayden Griffith, who is Native American, was a graduating high school senior. As a part of her tribe’s traditional cultural practices, a tribal elder presented her with an eagle feather. The feather was given to her in recognition of her academic success, graduation from high school, and passage into adulthood. According to Griffith, in her culture, when a person is ceremonially given an eagle feather for a certain occasion, it is often seen as a sign of disrespect or dishonor to fail to wear the feather for that occasion. Further, according to Griffith’s religious beliefs, when an eagle feather is worn, it must be worn on the head and cannot be dominated by another object that is also being worn on the head.

Griffith asked for permission to the wear the feather on her graduation cap. The school denied her request, explaining that students were not allowed to wear decorations on their caps at graduation. The school did, however, give Griffith the option of wearing the feather on a necklace, clipped to her hair, or held in her hand.

As a result of the school’s decision, Griffith was unable to wear the eagle feather on her cap during her graduation ceremony. Although she was given the option of wearing the feather elsewhere, besides her cap, such alternatives violated her religious beliefs. According to Griffith, by not wearing the eagle feather during her graduation, she disrespected the feather, the tribal elder who presented it to her, and God.

Griffith filed suit in federal district court against Caney Valley Public Schools (CVPS) approximately a week before graduation. She alleged that CVPS’ policy violated her free speech and free exercise of religion rights and sought a preliminary injunction allowing her to wear the feather during the graduation ceremony. The court denied her request a day before graduation.

Griffith subsequently amended her legal complaint, seeking a declaratory judgment and nominal damages. CVPS filed a motion to dismiss the suit on the ground that Griffith had failed to state a valid cause of action.

Ruling/Rationale: The district court granted CVPS’ motion to dismiss the suit. Addressing Griffith’s free speech claim, it stated that restrictions on student speech in public schools are judged under one of two standards. The first standard was spelled out in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), which indicates that school officials can restrict “private student speech,” i.e., “student expression that is unconnected to any school-sponsored activity,” only if it reasonably concludes that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.” The other standard, which is enunciated in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to regulate “student speech in school-sponsored expressive activities so long as [its] actions are reasonably related to legitimate pedagogical concerns.”

CVPS contended that student graduation attire is school-sponsored speech and its policy barring decorations on graduation caps is reasonably related to legitimate pedagogical concerns. Griffith, on the other hand, argued that the school had created a limited public forum in graduation attire, thus making wearing decorations, such as her eagle feather, on graduation caps private student speech subject to the Tinker standard. According to Griffith, other students were allowed to wear sashes and stoles marking school-related achievements and activities. Therefore, the school’s denial of her request amounted to viewpoint discrimination in violation of her First Amendment speech rights.

The district court rejected Griffith’s arguments, finding them “unpersuasive.” It stated:

Here, the school has not created a forum (of any kind) for student expression on their graduation caps. Indeed, as Griffith herself acknowledges, the school does not allow students any form of personal expression on their graduation caps during the commencement ceremony. The fact that students are allowed to wear sashes and stoles in recognition of certain school-related achievements and activities does not alter this conclusion. Such items are allowed only for academic achievement or participation in school-sponsored activities and, crucially, are not worn over or affixed to the graduation cap.

The district court found that to the extent the graduation attire constituted expressive activity it is not expression that school officials merely tolerate, but rather it is expression they actively promote and control. It concluded, “Given the degree of control the school exercised over this event, observers reasonably could have perceived the expressions made through the students’ graduation regalia as bearing the imprimatur of the school.”

Turning to the question of whether the policy was reasonably related to a legitimate pedagogical concern, the court concluded it was. It pointed out the policy “promotes unity, discipline, and respect for authority, and allows the school to reserve special recognition for student achievement or participation in school-related activities.” It also noted the policy “avoids the controversy that could potentially arise from allowing each individual graduating student to wear his or her own religious, cultural, or familial emblems of personal success or achievement.”

Regarding Griffith’s free exercise of religion claim, the court stressed that “[n]eutral rules of general applicability normally do not raise free exercise concerns even if they incidentally burden a particular religious practice or belief.” It asserted that laws that are neutral and generally applicable will survive constitutional challenge provided they are rationally related to a legitimate governmental interest.

The district court agreed with CVPS that the policy was both neutral and generally applicable. It found Griffith had failed to allege any facts showing that the school’s “no cap decoration” policy applies or was enforced against her for religious reasons. It also indicated that “any suggestion that the defendants harbored a discriminatory motive is belied by the fact that the school made efforts to accommodate Griffith’s religious practice.”

The court likewise rejected Griffith’s assertion that the fact the “no cap decoration” rule was not part of a formal written policy or procedure demonstrated that it was not generally applicable. It emphasized the policy had been communicated in writing to the graduation class. It said, “[the fact that] the policy was not memorialized in a more ‘formal’ document, without more, does not give rise to a plausible inference of disparate treatment.”

Griffith v. Caney Valley Pub. Sch., No. 15-273 (N.D.Okla. Jan. 5, 2016)

[Editor’s Note: In June 2015, Legal Clips summarized an Associated Press article in Yahoo News reporting that Clovis Unified School District (CUSD) agreed to allow Christian Titman (who is Native American) to wear an eagle feather to his high school graduation, ending a suit brought by the American Civil Liberties Union of Northern California (ACLU-NoCal). Titman’s attorneys argued that the student’s rights to freedom of expression and religion in the state constitution were being violated.]

 

 

Colorado legislature considering proposal to create an ethics commission for school boards to resolve alleged violations of state’s open meetings and open records laws

A bill has been introduced in the Colorado Senate that would create a new ethics commission for school boards with the authority to hear alleged violations of Colorado’s Open Meetings Law (the Sunshine Law) or the Colorado Open Records Act (CORA), says The Colorado Independent. The bill, SB 16-101, was introduced by state Sen. Andy Kerr.

The proposed legislation creates a five-member “School Board Ethics Commission” within the Colorado Department of Education and establishes a code of ethics for school board members. It also creates a way to ensure that school board transparency is “enforceable in a manner that results in timely and efficient recourse for the public.” Kerr believes SB 16-101 adds some “teeth” to CORA and the Sunshine Law, at least for the governing boards of local school districts and charter schools.

Currently, the only way to challenge alleged violations of either law is by filing a lawsuit in district court, an intimidating process for many people. Under SB 16-101, a person could file CORA and Sunshine Law complaints with the school board ethics commission, as well as complaints related to ethics, the conduct of school board meetings and other matters.

Upon a finding of probable cause, the commission would refer a complaint to an administrative law judge for a hearing. The commission then would vote to determine if a violation occurred and, if so, whether to impose a fine, censure a board member, void a school board action or impose some other sanction. Commission decisions could be appealed to district court.

Kerr points out that under proposed legislation the individual making the complaint “bears the burden of proving the allegation by a preponderance of the evidence,” unless another statute requires a higher burden of proof. Someone making a frivolous complaint could be fined up to $500.

SB 16-101 has been assigned to the Republican-controlled Senate State, Veterans and Military Affairs Committee, which has a reputation for killing bills. As a Democrat, Kerr fears “there’s some handwriting on the wall – that it’s not meant to go beyond that (committee). But we’ll see. I think it’s a good idea.”

Source: The Colorado Independent, 2/3/16, By Jeff Roberts

[Editor’s Note: SB 16-101 provides:

The commission may hear complaints relating to alleged violations by board members of:

The code of ethics for school board members created in the bill;

The conduct of school board meetings;

School board bylaws relating to the conduct of board members;

Statutes relating to ethics in government;  Statutes relating to open meetings;

The “Colorado Open Records Act”; and

Any other provisions of state law that relate to ethical codes.]

Parent’s suit against Oregon district claims her son, who is a special ed student, was subjected to harassment by school staff because he is gay

According to The Oregonian, Shawna Dicintio has filed suit against Hillsboro School District (HSD), on behalf of her son identified as J.D., alleging that five staff members at Century High school (CHS) bullied and harassed J.D. The suit alleges that CHS teacher Brett Trosclair threatened to kill J.D., who is a special education student and gay, during a March 2015 school assembly.

The suit states that J.D., who is openly gay, told his friend that he thought another student was cute. Trosclair then turned around, the son said, and told the boys to “shut up.” Then he threatened to kill them and throw them down the stairs. After J.D. and his friend complained , HSD officials placed Trosclair on administrative leave.

A number of CHS students rallied in support of Trosclair. Some walked out of class, and 600 joined a Facebook group asking district leaders to reinstate him. Trosclair eventually returned to school.

J.D.’s mother claims the support for Trosclair turned into threats against J.D. According to the suit, students began tweeting using the hashtag #TeamTrosclair, defending Trosclair as a dedicated teacher known for sarcasm. The suit alleges some students wrote on Twitter that J.D. is a diva and a bully, while others threatened violence and death.

The suit contends that CHS stood by while J.D. was harassed by peers, citing a May 2014 incident where the school’s dean of students refused to help the student while he was being verbally and physically assaulted in the lunchroom.

After J.D.’s mother complained in September 2014 about another name calling incident by a staff member, the superintendent’s executive council reviewed the district’s policies on bullying and harassment. The district also offered multiple two-hour trainings so staff could learn about LGBTQ and gender issues to better meet the needs of gay and transgender students. However, the suit contends district officials did not do enough and instead caused her son “emotional distress, embarrassment, humiliation, anxiety, stress and fear.”

J.D.’s mother wants the school district to pay her son for past and future medical bills, as well as past and future wage losses in an amount to be determined at trial. She asks that school district leaders allow her son, now taking online classes, to return safely to school, even if that requires giving him a police escort or private security. And she wants every district teacher and administrator to attend eight hours of diversity training on sexual orientation and gender identity.

Source: The Oregonian, 1/27/16, By Casey Parks

[Editor’s Note: In December 2013, Legal Clips summarized a story from gulflive.com reporting that the Southern Poverty Law Center (SPLC) had filed suit in federal court against the Moss Point School District (MPSD) alleging that lesbian, gay, bisexual and transgender (LGBT) students, as well those perceived as LGBT, were being subjected to pervasive bullying and harassment in the district’s schools. The suit claims that the harassment comes from administrators, teachers and students.]

 

 

Oklahoma Supreme Court upholds the constitutionality of the state’s private school scholarship program for disabled students

Oliver v. Hofmeister, No. 113267 (Okla. Feb. 16, 2016)

Abstract: The Oklahoma Supreme Court has ruled that the state’s private school voucher program for disabled students does not violate a provision of the state constitution that prohibits the state from using public money for the benefit, use or support of  religious or sectarian institutions. It found the fact that most of the schools participating in the program are sectarian without constitutional significance. According to the court, that concern had been disposed of by the U.S. Supreme Court in Zelman v. Simmons-Harris, 536 U.S.639 (2002), which involved the issue of whether Cleveland’s private school voucher program passed muster under the U.S. Constitution’s Establishment Clause.

In addition, the Oklahoma Supreme Court found its decision in Murrow Indian Orphans Home v. Childers, 171 P.2d 600 (Okla. 1946), supported upholding the voucher program because the parents’ acceptance of the scholarship is in exchange for their voluntary relinquishing of the student’s federally guaranteed disability rights.

Facts/Issues: Under the Lindsey Nicole Henry Scholarships for Students with Disabilities Act, the state sets aside public education monies to fund a portion of students’ private-school tuition. A number of individuals as Oklahoma taxpayers filed suit in state court against the State of Oklahoma, seeking to enjoin the state from operating the scholarship program on the ground that its provisions violate the state constitution.

The District Court of Oklahoma County (trial court) held that the program violated Article II, Section 5 of the Oklahoma Constitution. Section 5, known as the “No Aid” Clause, states: “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit or support of any priest, minister or other religious teacher or dignitary, or sectarian institution as such.”

Ruling/Rationale: The Oklahoma Supreme Court reversed the district court as to the ruling that the scholarship program violated Article II, Section 5. It held the program does not run afoul of the “No Aid” provision because the program is neutral, parents may choose from either nonsectarian and sectarian schools participating, and the funds do not go directly from the state to schools, but rather as a result of private choice by the parents. It stated, “We find there is no influence being exerted by the State for any sectarian purpose with respect to whether a private school satisfies these requirements.”

The state supreme court rejected the taxpayers’ suggestion that there is constitutional significance to the fact that more students are attending sectarian private schools than non-sectarian. It found that the concern had been disposed of by the U.S. Supreme Court in Zelman v. Simmons-Harris, 536 U.S.639 (2002), which involved the issue of whether Cleveland’s private school voucher program passed muster under the U.S. Constitution’s Establishment Clause. It focused on two factors identified in Zelman: the neutrality of the voucher program and the private choice exercised by the families in deciding what school to enroll the student at. The U.S. Supreme Court concluded: “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken.”

The Oklahoma Supreme Court also relied on its own precedent in Murrow Indian Orphans Home. Based on the rationale in that case, it concluded that “the public school, the State, receives a substantial benefit, being relieved of the duty to provide special educational services to the scholarship recipient,” that is in the nature of a contract rather than a gift or donation, thus avoiding application of the no aid clause in the state constitution.

Oliver v. Hofmeister, No. 113267 (Okla. Feb. 16, 2016)

[Editor’s Note: In March 2012, Legal Clips summarized an article in the Tulsa World reporting that a state court had struck down Oklahoma’s law providing private school vouchers to special needs students on the ground that it violates the state constitution. Under the Lindsey Nicole Henry Scholarships for Students with Disabilities Act, the state sets aside public education monies to fund a portion of students’ private-school tuition.]

 

South Dakota Senate passes legislation restricting transgender students’ use of restrooms and locker rooms and sends it to governor for final approval

According to an Associated Press (AP ) report from CBS News, the South Dakota Senate, in 20-15 vote, passed a bill that would require transgender students to use bathrooms and locker rooms that correspond to their sex at birth. If  Gov. Dennis Daugaard signs the legislation, South Dakota will become the first state to enact such restrictions. Proponents of the bill argue its intent is to protect the privacy of all students, but opponents say it discriminates against vulnerable adolescents.

Opponents of the legislation argue that in addition to the likelihood it will lead to bullying, they also question the constitutionality of the bill and fear it will cost the state millions in lawsuits. Under the plan, schools would have to provide a “reasonable accommodation” for transgender students, such as a single-occupancy bathroom or the “controlled use” of a staff-designated restroom, locker room or shower room.

The American Civil Liberties Union of South Dakota and Human Rights Campaign (HRC) have been vocal in their opposition to the measure and have called on Daugaard to veto the legislation. HRC president Chad Griffin said, “History has never looked kindly upon those who attack the basic civil rights of their fellow Americans, and history will not treat kindly those who support this discriminatory measure.”

Several states have looked at addressing gender and public facilities in the past several years. Last year, Houston was the scene of a bitter public fight over nondiscrimination rights that focused on transgender people’s use of restrooms. However, South Dakota would be the first state in the nation to put such a measure into law, said Joellen Kralik, a research analyst at the National Conference of State Legislatures.

Supporters say South Dakota’s plan is a response to changes in the Obama administration’s interpretation of the federal Title IX anti-discrimination law related to education. Federal officials have said that barring students from restrooms that match their gender identity is prohibited under Title IX.

Source: CBS News, 2/17/16, By AP

[Editor’s Note: In February 2016, Legal Clips summarized a story from SDPB Radio reporting that the South Dakota House State Affairs committee had approved House Bill 1008 (HB 1008), which would 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.

In December 2015, Legal Clips summarized an article in the Chicago Tribune reporting on the the U.S. Department of Education’s Office for Civil Rights (OCR) entering into a resolution agreement with an Illinois school district over a transgender high school student seeking to use the girls’ locker room facilities. OCR’s investigative finding that the district had violated Title IX, in the case of a transgender student, was the first of its kind. The district was given 30 days to reach an agreement or risk having its federal educational funding suspended or terminated, as well as face possible litigation.] 

Kansas Supreme Court rules that state’s current system of funding public schools is constitutionally inequitable

The Kansas Supreme Court has held that the state’s new block grant funding for public schools fails to pass muster under the state constitution’s provision requiring equitable funding for schools, says WIBW 13. However, the court ruled that the state legislature should be afforded another opportunity to create a constitutional funding system. If no constitutional system is in place by June 30, there will be no lawful system to distribute money to K-12 public schools.

The supreme court affirmed the lower court’s ruling that the State has not carried its burden to show it has cured the supplemental general state aid’s unconstitutional inequities. It also said it would schedule arguments on whether school funding is adequate for the spring of 2016. It decided to put on hold a determination of the adequacy issue pending the legislature’s handling of the equity issue.

Responding to the supreme court’s decision, Governor Sam Brownback said, “Kansas has among the best schools in the nation and an activist Kansas Supreme court is threatening to shut them down. We will review this decision closely and work with the Legislature to ensure the continued success of our great Kansas schools.”

Sorce: WIBW 13, 2/11/16, By Regan Porter, Nick Viviani, Amanda Lanum

[Editor’s Note: The Kansas Supreme Court’s opinion in Gannon v. State of Kansas concluded:

Under the facts of this case, the district court panel correctly held the State has not carried its burden to show it has cured capital outlay’s unconstitutional inequities that were affirmed to exist in Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014).

In February 2015, Legal Clips summarized an article on Cjonline.com reporting that Schools for Fair Funding, the coalition of school districts that brought the Gannon v. State suit, has filed a motion to reopen the equity issue in Gannon that was decided by the Kansas Supreme Court in 2014. Gannon raised two issues: whether poorer school districts are receiving equitable funding compared with wealthier districts, and whether total state aid to schools is adequate.]

Congress warns states and U.S. Dep’t of Ed. that it will closely scrutinize their implementation of ESSA

Education Week reports that the House education committee’s message to states and the U.S. Department of Education (ED) during a recent committee hearing is “We’ll be watching you” as states and ED work to implement the Every Student Succeeds Act (ESSA). Republicans on the committee that held the hearing seemed to be trying to cut potential federal overreach off at the pass, making it crystal clear from the start that, in their view, the law is aimed at returning key authority over K-12 schools to states and school districts.

U.S. Rep. Todd Rokita (R-IN), the chairman of the subcommittee that oversees K-12 policy, said, “Congress promised to restore state and local control over K-12 education, and now it’s our job to ensure that promise is kept.” Democrats on the committee made it equally clear they’ll be keeping their eye on the department and states to make sure that they don’t use this newfound flexibility to trample on protections for historically overlooked groups of students, such as English-language learners and those in special education.

The differing views on ESSA oversight is unsurprising given the legislation strikes a delicate balance between giving states and districts much greater leeway on K-12 and continuing the federal role in looking out for vulnerable groups of children. In addition to the promised Congressional oversight, a coalition of ten groups representing superintendents, principals, state and local board members, state lawmakers and teachers, known as  the State and Local ESSA Implementation Network (SLESSAIN), sent a letter to ED Secretary John B. King, Jr. letting him know that they’ll be working together to promote state, local, and school decision-making when it comes to ESSA regulation.

Selene Almazan, the legal director for the Council of Parent Attorneys and Advocates, which works to protect the civil rights of students in special education, sees a pivotal role for the federal government in making sure states look out for low-income kids, racial minorities, students in special education, and others. “Past history shows that states often set expectations far too low, which leads directly to low student achievement, impacting our most disadvantaged students,” she said in written testimony.

Both committee Republicans and Democrats sought to clear up areas where they seem to think that the messaging on ESSA has been muddled.This might be the House’s first ESSA oversight hearing, but it won’t be the last. The panel has already invited King to testify twice before the end of the month. The first appearance, possibly on Feb. 24, is slated to focus on the budget. And the second, on Feb. 25, is expected to be solely on ESSA implementation and oversight.

Source: Education Week, 2/10/16, By Alyson Klein

[Editor’s Note: The National School Boards Association is one of the organizations that are a part of SLESSAIN. SLESSAIN’s letter to Secretary King states

In the coming months, our coalition – the State and Local ESSA Implementation Network – will:

Work together to ensure a timely, fair transition to ESSA;

Coordinate ESSA implementation by governors, state superintendents, school boards, state legislators, local superintendents, educators and parents;

Promote state, local and school decision-making during implementation; and

Collaborate with a broader group of education stakeholders to provide guidance to the federal government on key implementation issues. ]

 

Sua Sponte: NSBA files two petition stage amicus briefs with U.S. Supreme Court in employment and federal agency rulemaking cases

Last week the National School Boards Association (NSBA) joined in two amicus briefs filed with the U.S. Supreme Court at the petition stage. The first brief, United Student Aid Funds, Inc. v. Bible, No. 15-861, was filed on February 5, 2016. NSBA joined the State and Local Legal Center (SLLC) in urging the Supreme Court to grant review and reverse the U.S. Court of Appeals for the Seventh Circuit’s decision and overturn Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which sanction the practice of according binding deference to agencies’ interpretations of their own regulations.

The SLLC/NSBA brief makes three arguments: (1) Auer creates incentives for agencies to promulgate vague regulations, undermining the efficacy of notice and comment rulemaking; (2) Auer creates unique problems for state and local governments; and (3) The Supreme Court should grant certiorari and abandon Auer and Seminole Rock, or at the very least overrule Auer and Limit Seminole Rock to its original scope.

In NSBA’s press release announcing filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “Enabling an agency to expand the scope of its power and authority can lead to significant financial and operational burdens for those directly impacted by the regulations.” He continued, “This case provides the Court with the opportunity to promote straightforward regulations and rein in federal agencies’ discretionary power.”

Commenting on the filing of the brief, NSBA General Counsel and Associate Executive Director, Legal Advocacy, Francisco M. Negrón said, “The unfettered ability of federal agencies to change regulatory interpretation can cause  uncertainty in the law, leaving regulated entities like school boards guessing about compliance.”

The second brief, City of Houston v. Zamora, No. 15-868, was filed on February 8, 2016. NSBA joined with the International Municipal Lawyers Association (IMLA) urging the Supreme Court to reverse the U.S. Court of Appeals for the Fifth Circuit’s adoption of the “cat’s paw” theory of liability in Title VII cases. The IMLA/NSBA brief makes two arguments. First, the rule of liability adopted by the Fifth Circuit is contrary to the Supreme Court’s decisions in Staub v. Proctor Hospital, 562 U.S. 411 (2011) and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). Second, the Fifth Circuit’s rule needlessly exposes public employers like amici’s members to expansive liability and undermines internal review processes designed to protect employees and the public alike.

In NSBA’s press release announcing filing of the IMLA/NSBA brief, NSBA Executive Director Thomas J. Gentzel said, “Such a rule levies an unfair and onerous burden on boards as employers given that no amount of internal process would protect them from liability if a jury later finds that the credited employee had a discriminatory motive.” NSBA General Counsel and Associate Executive Director, Legal Advocacy, Francisco M. Negrón commented, “Our goal is to inform the High Court of the practical realities of how school boards receive information, make employment decisions, and proactively address complaints of discrimination through established policy.”  He added, “The need for further review is important to school boards as the largest employer in the country.”

Virginia district pulls “Black History Month” video from high school after complaints it fosters “white guilt”

According to The Washington Post, Henrico County School District has pulled a video that had been shown during two assemblies at Glen Allen High School after it made students uncomfortable and drew criticism from parents who called it “white guilt.” The video, which was shown as part of “Black History Month,” depicts several runners on a track, with black runners facing insurmountable obstacles while white runners are unimpeded.

Henrico County Public Schools officials initially defended the video, saying it was “one component of a thoughtful discussion in which all viewpoints were encouraged.” But after the story began to spread nationally, school officials switched gears, labeling the video “racially divisive” two days later. “The Henrico School Board and administration consider this to be a matter of grave concern,” School Board Chair Micky Ogburn said in a statement released to The Washington Post. “We are making every effort to respond to our community. It is our goal to prevent the recurrence of this type of event. School leaders have been instructed not to use the video in our schools.”

The video contextualizes historic racial disparity in the United States using the metaphor of a race track in which runners face different obstacles depending upon their racial background. It has been shown hundreds of thousands of times at schools and workshops across the country since it was created more than a decade ago, according to the African American Policy Forum, which produced it. “The video is designed for the general public,” said Luke Harris, co-founder of the African American Policy Forum and an associate professor of political science at Vassar College. “We produced something you could show in elementary and secondary schools or in college studies courses.”

Ravi K. Perry, an associate professor of political science at Virginia Commonwealth University and President of the National Association for Ethnic Studies, told the Post that he worked closely with school officials over several months to plan the presentation, which he also moderated. The video, he said, was just one element of a 30-minute-long, interactive presentation that was shown to two separate groups, each with around 1,000 students. He asked students to fill out a “group membership profile” and write a poem describing their identity. He said the students were “fully engaged” and the response afterwards was overwhelmingly positive.

The scope of the backlash remains unknown, but the school district’s statement noted that “school division leaders” received “numerous emails and phone calls objecting to the video.”

Harris, the African American Policy Forum co-founder, told the Post that the video is intended to show that race-conscious programs are not designed to create “favoritism for damaged individuals,” but instead are about creating remedies for damaged institutions. The backlash from some white parents in Virginia didn’t surprise him, he said. “The anger is a reaction that we expect to get from some Americans, because we live in a society that doesn’t have honest discourse about race,” Harris said. “Our society is as heterogeneous as any on the planet, but American social history from a multicultural, multiracial perspective is just something that people have not been exposed to.”

Perry said it was unfortunate that school officials had chosen not to use anger about the video to engage in a larger dialogue about race within their community and instead chose to support the views of the loudest voices.

Source: The Washington Post, 2/11/16, By Peter Holley

[Editor’s Note: The video is embedded in The Washington Post story.

In September 2013, Legal Clips summarized an article in The Day reporting that the parent of an African-American middle school student had filed a complaint with the Connecticut Department of Education (CDE) after his child was forced to reenact conditions of slavery, such as being sold at auction and picking cotton, while on a field trip.  James Baker, whose daughter attends Hartford Magnet Trinity College Academy, read her written statement to the school board.   She said:  “I had to hold my head down and could not make contact with the white masters.  I heard the instructor ask kids behind me to open their mouths so their teeth could be checked.  Some were asked to jump up and down.”]

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