Developing Legal Issues in

the Public Schools

© October, 2015Presented byR. Craig Wood

McGuireWoods LLP

GENDER IDENTITY

A growing concern

• LGBT students are invoking equal protection under A14

• USDOE recognizes “sexual orientation” and “gender identity” as covered under Title IX

• Gender identity is a “state of mind” – an emotional and social identity associated with a preferred gender which might not be the same as the birth sex

Gender identity

• The rules and guidelines are very unclear

• California is the only state to say “treat every student in accordance with his/her gender preference for all purposes”

• Includes sports teams, restroom facilities, cheerleading teams, dress codes

• Not the rule in Virginia, but the interpretation OCR is advancing under the current administration

GLOUCESTER CASE

• The DOE approach was recently rejected in a federal case involving Gloucester County Schools

• A more permissive “gender neutral facilities” approach was upheld

• G.G. v. Gloucester County School Board, EDVa, September 17, 2015 (Judge Doumar)

Essential facts

• GG was born a female but at an early age realized he did not “feel like a girl”

• Refused to wear “girl clothes” at age 6

• By 9th grade was getting so stressed out about his gender identity that he took classes by home bound instruction

• His psychologist gave him a treatment plan that said that he should be treated as a boy in all respects “including with respect to his use of the restroom.”

Facts

• He started hormone therapy• He changed his legal name to a

masculine name• When in public he used male

restrooms• He decided to return to school as a

male• At first he agreed to use a separate

restroom in the nurse’s office• Then later decided he wanted to

use the male restroom

School’s response• The principal agreed he could use

the male restroom, which he did for the first seven weeks of school in 2014-15

• Some community members disapproved

• The school board heard comment on a proposed resolution that would have the effect of returning GG back to the private facility

• In the meantime, they improved the privacy in all restrooms and added three “gender neutral” private restrooms

The Resolution• Encouraged gender-confused

students to seek adult and professional guidance

• Emphasized the goal of a safe learning environment for all students

• Emphasized the desire to protect the privacy of all students

• Required use of the facility corresponding to the “biological gender,” with “alternative appropriate private facilities” for students with gender identity issues

The lawsuit

• ACLU claims violations of Title IX and equal protection clause

• Separate single-stall restrooms would stigmatize and isolate him

• They would serve as a reminder that the school views him as “different”

• Everyone knows the restrooms were installed just for him

Title IX analysis

• School Board – “sex discrimination does not include gender identity discrimination”

• GG (ACLU) – yes, it does• Court – I can answer the Title IX

dispute without deciding that question, because Title IX when enacted included specific language that provides for separate facilities for each sex

• That exception is also found in DOE regulations

Title IX

• “…nothing contained herein shall be construed to prohibit any educational institution … from maintaining separate living facilities for the different sexes.”

• 20 U.S.C. §106.33• That exception was further

expressed in DOE regulations

DOE Regulations

• “A [school] may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities shall be comparable to such facilities provided for students of the other sex.”

• 34 C.F.R. §106.33• DOE’s current interpretation is in

conflict with its own regulations, and “guidance” (like Dear Colleague letters) do not trump regulations

The Holding

• §106.33 allows the separation of bathroom facilities on the basis of gender, but it does not require sex-segregated bathrooms on the basis of gender rather than on the basis on birth or biological sex

Equal Protection

• The court found that there was no equal protection issue because both sexes were treated the same, and because by protecting the “privacy” rights of the other students, the School Board was protecting a constitutional right

• Basically weighing one right against the other, and finding that the privacy right trumped the equal protection argument

Gay-Straight Alliance Clubs

• Equal Access Act requires schools to treat student clubs on LGBT issues the same as other student groups

• Two requirements: 1. club must be student-initiated; and 2. only applies when school has “limited open forum”

• LOF does not exist where you have “curriculum-only” clubs

• Don’t wait until you get a GSA request to try to eliminate the LOF - retaliatory

What about community backlash?

• Schools cannot deny equal access to, or discriminate against, students on the basis of religious, philosophical, political or other content of speech

• Unpopularity has been rejected by courts as a legitimate justification to prevent student speech or association

• Disruptive response in opposition is not justification – the group itself has to be actively disruptive

What about staff or outsiders?

• Clubs under EAA must be student initiated

• Outside community members “may not direct, conduct, control, or regularly attend activities of student groups”

• Staff may attend for “custodial” purposes. But may not control or direct content

FREEDOM OF INFORMATION ACT

General Assembly studying changes

• Some advocates for change want to eliminate the “working papers” exception

• § 2.2-3705.7. The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

Working papers exception

2. Working papers and correspondence of … the mayor or chief executive officer of any political subdivision of the Commonwealth… However, no record, which is otherwise open to inspection under this chapter, shall be deemed exempt by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence.

“Working papers” defined

• "Working papers" means those records prepared by or for an above-named public official for his personal or deliberative use.

• Could include notes, spreadsheets, drafts of organizational charts to do a re-organization of staff, draft budgets, notes on staff, plans for dealing with particular situations.

Policy behind 3705.7

“When a particular course of action or public policy is being explored by government, those involved in the decision-making process should be encouraged to put all ideas and perspectives on the table, even if some of those ideas might later be discounted as unworkable or impractical.”

Va. FOIA Council, 2004

You lose the exception if you share the document

• Any document labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party

• Absent such a release, a record created by or for one of the named officials for his personal or deliberative use retains the characterization of a working paper

Argument for change

• Public leaders can hide behind the exemption

• The protection should go away after the decision is made

• Final reports are FOIA-able, but drafts and dissenting opinions are protected

Personnel Records exemption

• Personnel records are protected, as is discussion of personnel matters, which must be in closed session

• § 2.2-3705.1(1)• Advocates of change want the

discussion of the performance of top hires, such as county managers and school superintendents, to be in public

• “Local governments should give a reason for firing top officials”

OCR AND MENTAL HEALTH ISSUES

Suicide Trends

• March 2015 C.D.C. article on suicide trends in young people aged 10-24

• Suicide is second leading cause of death among this age group

• 4,700 young people each year die• 1 out of 6 high school students

contemplate suicide• 1 out of 13 attempts suicide one or

more times

Depression trends

• Adverse Childhood Experiences (ACE’s) are major risk factors for emotional problems

• ACEs contribute to a higher likelihood of severe emotional disturbance if left untreated

• 1 in 12 Americans suffers from depression (CDC, Dec. 2014)

• Only 1/3 of those seek mental health treatment

Raises 2 Questions for Schools

• Are there federal law obligations to provide assistance to students with mental illness?

• If so, what steps should school take?

Section 504

• Rehabilitation Act of 1973• OCR says that qualifying conditions

include psychological disorders such as bipolar disorder, major depressive disorder, or PTSD

• Must screen students through Child Find process to identify children in need of services

Child Find

• If a student has a mental health issue that substantially limits the student’s ability to have an equal opportunity to participate in a public sch0ol’s activities, that student has a 504 disability

• Student must be provided reasonable accommodations to enable him to participate effectively at school

Title IX

• Title IX protects students against sexual harassment and sexual assault

• OCR’s position is that students who have never been identified as disabled under IDEA or 504 may, as a result of sexual harassment or violence, “develop” a qualifying disability

• Does not matter if the assault occurred at school – it is the RESULT that is the concern for this purpose

Title IX

• School should provide appropriate counseling

• Want to cooperate with social services when appropriate

• If the parent refuses to allow the child to be evaluated and counseled, you should report to DSS as child neglect, and allow DSS to make the appropriate determination – but don’t do NOTHING

IDEA

• “Emotional Disturbance” is one of the IDEA-covered disabilities

• Defined as a “condition exhibiting one or more of the following over a long period and to a marked degree that adversely affects a child’s performance”….

Emotional DisturbanceA. An inability to learn that cannot be

explained by intellectual, sensory or health factors;

B. An inability to build or sustain interpersonal relationships with peers and teachers;

C. Inappropriate behavior under normal circumstances;

D. Pervasive mood of unhappiness or depression; or

E. Physical symptoms of fear.

So What are the Appropriate Actions?

A. Create policies, protocols and procedures

1. Be clear as to who is to do what

B. Educate staff1. Teachers need to know the warning

signs2. They need to know how to intervene3. They need to respond actively and

quickly when suicide signs are present4. They need to involve mental health

professionals at an early stage

What to Do

C. Determine who can be assisted with in-school services, and who needs to referred outside for professional assistance

D. Develop a plan for each identified student

E. Work with the professionals to prevent a worsening or recurrence of serious symptoms or suicidal ideation

What to Do

F. Have a referral and crisis plan1. Make sure staff knows who to contact

if a child exhibits mental health issues or suicidal ideation

2. Train staff as to warning signs3. Inform staff how to respond to the

student4. Develop a suicide prevention

program or protocol

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