The Family Policy Compliance Office (“FPCO”) now offers school districts a tentative framework for responding to parents’ requests for videos. Often such footage – a security video of a cafeteria fight, for example – includes images of multiple students, which may all be individually protected by FERPA, the Family Educational Rights and Privacy Act. For years, school districts struggled with how to handle such requests, what to release, to whom, and what to redact, if anything.

The FPCO’s long-awaited guidance document (Letter to Wachter) describes a school district that received a records request for video footage of a hazing incident. The incident involved six perpetrators and two victims. The request came from a parent of a perpetrator, but the district noted that it did not have the resources to redact other students’ images. The FPCO explained that the video footage was an educational record for both the victims and the perpetrators, but would not be considered a record for bystanders who were not involved in the incident. Further, the FPCO explained that if redaction was impossible or would destroy the record’s meaning, the district may allow the parent to inspect and review the video, even if other students are pictured. Notably, FERPA requires districts to allow parents (or eligible students) the opportunity to inspect and review the record, but does not require – in most circumstances – districts to provide parents with a copy.

In determining whether to release video footage depicting multiple students, districts can begin by considering the following questions:

  • Is the video footage an educational record for any student? If not, FERPA does not apply.
  • If the video is an educational record of multiple students, will parents of the other students featured in the footage consent in writing to the release of the unredacted educational record? If they would, this may be the simplest way to comply with FERPA requirements.
  • Is it possible to redact the video footage so as to conceal the other students’ identity but also maintain the record’s meaning? If not, the district may allow parents to view the unredacted record even if other students are pictured.
  • Must the district provide a copy of the video to the requesting parent? Districts are not obligated to provide copies unless requiring parents to come in and review the video effectively prevents them from accessing the record. This might occur if a parent lives far away or is disabled.

Although the FPCO guidance is informative, it remains unclear how these directives will interact with other statutes affecting student records, including Ohio’s Sunshine Laws. Issues related to the release of video footage that contains student images are extremely fact specific, and the information in this alert is intended to provide general guidance. School districts should work directly with legal counsel regarding specific situations.

Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

 

James McWeenyThe #MeToo movement has exposed rampant sexual harassment across the country in a wide range of industries. Yet, we’ve heard little about the movement in our schools, until recently.

While often underreported, statistics of student-to-student sexual harassment are troubling. According to research from the American Association of University Women, approximately half of students in grades seven to 12 reported experiencing some form of sexual harassment in the 2010-2011 school year. Likewise, the United States Department of Education’s Office for Civil Rights recently reported a substantial increase in the number of sexual violence-related complaints that it received from the elementary and secondary education levels. These reports of student-to-student sexual harassment are rapidly transferring the focus of #MeToo from Tinsel Town to the classroom.

Indeed, school-based sexual harassment internet hashtags are on the rise. And that helps give students the opportunity to voice claims of sexual harassment and violence against teachers and staff as well as peers. For example, stories of student-to-student sexual harassment are proliferating at a feverish rate under the #MeTooK12 hashtag, which was developed by Stop Sexual Assault in Schools, a non-profit organization that focuses on schools’ gender discrimination responsibilities pursuant to Title IX of the Education Amendments Act of 1972. Other groups, such as Sexuality Information and Education Council of the United States, created the #teachthem hashtag. #Teachthem advocates comprehensive reform of sex education programs in schools, with a particular focus on teaching consent. As a consequence of these trends, school districts need to understand #MeToo and be acutely aware of the obligations the movement places on them under the law.

Although not exhaustive, schools should be on the look-out for the following legal and policy considerations related to #MeToo in their districts:

  • How to respond to calls to change sex education programs, whether informally through parents, students, and/or community members and organizations or through formal government legislation, which focuses on teaching consent and healthy relationships
  • Obligations of school districts to investigate, report and remedy student-to-student sexual harassment and violence as well as distinguish bullying from sexual harassment and violence under district sexual harassment policies
  • Responsibilities under Title IX to address and remedy alleged violations of gender discrimination as well as allegations of sexual harassment and violence, whether student-to-student or staff-to-student
  • Student First Amendment free speech rights that call attention to #MeToo or #MeTooK12 as well as balancing these protected rights against the districts’ need to maintain discipline and order in school.

Above all else, #MeToo presents complicated legal questions for schools. Districts are therefore encouraged to contact their attorneys immediately if #MeToo or related sexual harassment issues arise in (and possibly beyond) their classrooms. Finally, while the focus of this alert has been on student sexual harassment issues, schools should also be mindful of their obligations to protect staff members against sexual harassment.

James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education law. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

 

It was the night of February 2, 2017 – a night that ended in tragedy for Tim Piazza. And it all started with alcohol at a Pennsylvania State University fraternity where Piazza was a pledge. Two days later, after prosecutors in the case say Piazza drank excessively at the fraternity during a hazing ritual, then tumbled down a flight of stairs, the sophomore engineering student died.

Hazing is at the core of Piazza’s case. It’s also the focus of similar cases at Louisiana State University and Florida State University, where two pledges have died this school year. In the Louisiana State case, eight fraternity brothers and two others face charges related to the death of 18-year-old Maxwell Gruver. Police say the suspects forced the Louisiana State freshman to drink himself to death.

And here in Ohio, hazing is why the Ohio State University terminated its band director three years ago. The former director sued, but later withdrew his case.

Hazing is defined as coercing another to do an act of initiation into an organization, which causes or creates a substantial risk of mental or physical harm to any person.

And statistics indicate that it may be more common than we think. According to the National Study of Student Hazing, 47% of high school students come to college already having experienced hazing. 55% of college students who participate in clubs, teams and organizations have witnessed the problem or become a victim.

Ohio is one of 44 states that has an anti-hazing law, which includes both civil and criminal statutes.

The state’s criminal statute states that no person may recklessly participate in hazing of another, and that no school administrator, teacher or employee may recklessly allow hazing to occur. Violation of the law is a fourth-degree misdemeanor, punishable by a jail term of up to 30 days and a fine of up to $250.

Ohio’s civil statute allows a victim to file suit against the perpetrators, the organization whose officials tolerated or authorized the hazing, or the officials themselves. The victim is permitted to seek damages for injury as well as mental and physical pain and suffering that results from the act.

While a school may be able to protect itself against any liability by showing that it actively enforced an anti-hazing policy at the time of the incident, a viable defense cannot be made that the plaintiff was negligent in the incident(s) or gave consent to be hazed.

It is highly recommended that boards of education review their anti-hazing policies to ensure that they are detailed enough to address incidents that happen to those who have been actively participating in an organization for some time and become a victim.

It is also important for school administrators to regularly train all teachers and staff on the definition of hazing, the respective state statutes and the district’s policies.

As for Piazza’s case, twelve fraternity brothers, along with the Beta Theta Pi fraternity chapter at Penn State, are now facing multiple charges, including hazing and furnishing alcohol to minors.

In response to the 19-year-old’s death, U.S. Rep. Marcia Fudge (D- OH) and Rep. Patrick Meehan (R-PA) introduced a bill earlier this year that would require universities to include acts of hazing in their annual crime reports required by federal law.

Kathy Perrico is a partner in Walter | Haverfield’s Education group.

 

In an article published by the Ohio School Boards Association, in its October 2017 issue of School Management News, Miriam Pearlmutter asserted that school districts attempting to resolve religious conflicts should consider the First Amendment’s Religion Clauses as well as federal and state laws on employee discrimination.

 

In another controversial move, the Office for Civil Rights (“OCR”) rescinded its previous guidance on sexual violence investigations.

In 2011, OCR issued a “Dear Colleague” letter, requiring universities and school districts to respond to sexual violence accusations with a specific protocol, both for investigations and decision-making. A 2014 question and answer document offered additional details about interim protective measures and confidentiality requirements. Among the more hotly-debated provisions, OCR directed educational institutions to use a “preponderance of the evidence” standard in determining whether the accusation was substantiated. Many universities, in particular, objected to these regulations, some even going so far as to challenge OCR’s noncompliance findings and standard resolution agreements.

On September 22, 2017, OCR rescinded the aforementioned guidance in a brief Dear Colleague letter. Although these previous directives may have been well-intentioned, explained OCR, they “have led to the deprivation of rights for many students – both accused students denied fair process and victims denied an adequate resolution of their complaints.” Asserting that schools faced a confusing and counterproductive set of mandates, OCR withdrew the aforementioned guidance and assured districts that it plans to develop a more fitting approach to sexual misconduct.

On the same day, OCR issued a document entitled “Questions and Answers on Campus Sexual Misconduct,” which provides additional details as to schools’ responsibilities in handling future sexual violence complaints. Citing Supreme Court law and sexual harassment guidance published in 2001, this QandA reiterates school districts’ obligations to respond when a hostile environment threatens a student’s participation. As was previously required, districts must still develop grievance procedures, implement interim measures, and conduct equitable investigations. The QandA, however, emphasizes that neither party should be restricted from discussing the investigation with others, and that both must receive written notice with sufficient details to prepare a response. Further, OCR now allows school districts to opt for informal resolutions – including mediation – provided that both parties voluntarily agree to forgo a full investigation and adjudication. Importantly, school districts may apply either the previous “preponderance of the evidence” standard or a “clear and convincing evidence” standard in reaching their factual conclusions. Finally, schools may allow appeals only for the responding party, if they so choose.

In light of these developments, school districts should review their policies and practices to determine whether any changes or clarifications are needed.

If you have any questions about this news alert, please contact a member of Walter | Haverfield’s Education Law Group.

Miriam M. Pearlmutter is an associate in Walter | Haverfield’s Education Services practice group.

On June 6, 2017, Acting Assistant Secretary for Civil Rights, Candice Jackson, issued instructions to the directors of the regional offices of the U.S. Department of Education’s Office of Civil Rights (OCR) regarding complaints involving transgender students. The instructions come in response to three events that have impacted transgender law in public schools: (1) the withdrawal of two guidance documents by the U.S. Departments of Education and Justice; (2) the dismissal of State of Texas v. United States; and (3) the remand of Gloucester County School Board v. G.G.

On February 22, 2017, the U.S. Departments of Education and Justice issued a letter withdrawing the statements of policy and guidance reflected in the May 13, 2016 “Dear Colleague Letter” (DCL) on the OCR’s enforcement of Title IX with respect to transgender students based on gender identity, as well as a related January 7, 2015 letter. On March 3, 2017, the U.S. District Court for the Northern District of Texas dismissed, without prejudice, State of Texas v. United States, a multi-state lawsuit challenging the May 2016 DCL, and dissolved the preliminary injunction that had restricted OCR’s enforcement of Title IX with respect to transgender individuals’ access to “intimate” facilities such as restrooms. Three days later, the U.S. Supreme Court vacated and remanded Gloucester County School Board v. G.G., a case involving Title IX as it relates to transgender students’ access to restrooms. The Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of the letter issued by the Departments withdrawing the May 2016 DCL.

Because of these events, Jackson says that the OCR can no longer rely on the policies set forth in the May 2016 DCL or the January 2015 letter to a private individual as the sole basis for resolving a complaint. However, according to the February 2017 letter, “withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment.” Instead, the OCR should rely on Title IX regulations, as interpreted in federal court decisions, and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender. Further, Jackson says that the OCR may still assert subject matter jurisdiction over, and open for investigation, the following allegations if other jurisdictional requirements are met under the OCR’s Case Processing Manual (CPM):

  • Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination.
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment.
  • Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment.
  • Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention.
  • Different treatment based on sex stereotyping.

In light of the above, the OCR asserts that it will approach each of these types of cases with great care and individualized attention before reaching a dismissal conclusion. OCR has emphasized that withdrawal of the May 2016 and January 2015 guidance documents does not leave students without protections, and the OCR remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in schools. However, at the present time, this area of the law remains very unsettled and school districts are cautioned to tread carefully when addressing issues related to the rights of transgender students. School districts should also be cognizant of state and local laws that may impact the rights of transgender students.

Christina Peer is a partner in the Education Services group of Cleveland-based Walter | Haverfield LLP.

In an article written by Douglas J. Guth and published online by Crain’s Cleveland Business on July 22, 2017, Christina H. Peer described Walter | Haverfield’s role in assisting school districts as they attempt to serve special needs students.

By Christine T. Cossler and Christina H. Peer.andnbsp;

The
Ohio Legislature passed House Bill 410 (H.B. 410) last December after
considering the legislation for over a year. The bill became law on
April 6, 2017. As of April 6, school districts must measure absences in
hours, rather than days, and must adhere to new laws regarding student
discipline. The new law substantially changes the truancy law for the
2017-2018 school year, and requires school districts to prepare and
implement policies that emphasize intervention strategies for
chronically absent students. Significant changes have also been made
with respect to student out-of-school suspensions.

Changes Effective on April 6, 2017

Truancy Terminology and Notice

The
new law eliminates the concept of “chronic truancy” and instead
categorizes all students with excessive absences as “habitually truant.”
Students are considered habitually truant when the student is absent
for at least:

  • 30 consecutive hours without a legitimate excuse (formerly 5 days);
  • 42 hours in one month without a legitimate excuse (formerly seven days);
  • 72 hours in one school year without a legitimate excuse (formerly 12 days);
  • 38 hours in one month regardless of excuse; or
  • 65 hours in one school year regardless of excuse.

School
districts must calculate absences by hours, rather than days, in
conformance with the new definition of habitual truancy. The school
district must send written notification to the parent or legal custodian
of any student who is absent, with or without legitimate excuse, for 38
hours in a month or for 65 hours in a year. The notice must be sent
within seven school days of the absence that triggers the habitual
truancy designation.

Make-up Work for Out-of-School Suspensions

If
a student is suspended for any misconduct, the new law provides that
the school board may, at its discretion, permit the student to complete
any assignments missed due to the suspension.

Suspension Carry-Over

Out-of-school
suspensions for any misconduct may not carry-over to the next school
year, but may be converted into required community service or a similar
alternative consequence. The student must begin the community service or
alternative consequence during the first full week of summer break. If
the student fails to complete his or her service requirements, then the
school district may determine an appropriate next course of action, but
may not require the student to serve the remaining time of the
suspension in the following school year. This change does not impact a
school district’s ability to carry an expulsion forward into the next
school year.

Changes for 2017-2018 School Year

Truancy Discipline

Starting
on July 1, 2017, a school district may not suspend, expel, or remove a
student solely due to excessive absences, and therefore may no longer
include excessive truancy in its zero tolerance policy.

Truancy Intervention Policy

A
school district must establish or modify a policy to guide employees in
addressing student absences and the policy must include absence
intervention strategies. Under the new law, the intervention strategy
policy is required for all school districts. The policy should include, as applicable, intervention strategies such as:

  • Providing a truancy intervention plan for habitually truant students;
  • Providing counseling to habitually truant students;
  • Notifying and involving the student’s parent or legal custodian;
  • Notifying the department of motor vehicles and county juvenile judge of habitual truancy; and
  • Pursing legal action in the juvenile court system under certain circumstances.

Under
the new law, habitually truant students whose absences are unexcused
must be assigned an absence intervention team. However, the law creates
an exception for districts with less than 5% chronic absenteeism as
reported on the district’s most recent state report card– those
districts are not required to assign habitually truant students to an
absence intervention team.

Absence Intervention Plan Team

When
required, the absence intervention team must consist of, at minimum,
two representatives from the school or district (at least one must know
the child) chosen by the superintendent or chief administrator of the
school, and the child’s parent or legal custodian, unless the parent or
legal custodian refuses to cooperate.

The team must be assigned to
the habitually truant student within ten school days after the
triggering absence. The team is required to develop an intervention plan
tailored to the student within fourteen school days after the team is
assigned. The school district must make reasonable efforts to provide a
written copy of the plan to the student’s parent or legal custodian
within seven school days after the plan is developed. The intervention
plan must explain that the attendance officer is required to file a
complaint with the juvenile court no later than 61 days after the
implementation of the plan if the student fails to comply with the plan.

Alternatively,
the school district may choose to enroll the student in an appropriate
juvenile court’s alternative to adjudication instead of convening an
intervention plan team.

Reporting Requirements

Starting
in the 2017-2018 school year, the school district must report to the
Department of Education, as soon as practicable, when:

  • A student becomes habitually truant;
  • A habitually truant student violates a court order; and
  • A habitually truant student is provided an absence intervention plan.

Further,
the school district must make three good-faith attempts to entice
meaningful parental or custodial involvement in the intervention team
and, if the parent or custodian fails to become involved, the school
district must investigate whether failure to respond triggers mandatory
reporting to the child protective services.

Looking Ahead

School
districts should plan ahead for end of the year mischief by developing a
list of alternative consequences that can be imposed in lieu of
carrying suspension days into the following school year. School
districts should also determine consequences for students who fail to
complete the assigned community service of alternative consequence
during the summer of 2017.

School districts can expect a model
policy emphasizing preventive strategies and alternatives to suspension
or expulsion from the Ohio Board of Education no later than July 6,
2017. The new law also requires the Board of Education to develop
absence intervention training materials for teachers and staff no later
than October 6, 2017.

School districts should use the summer to reevaluate or adopt absence policies for the 2017-2018 school year.

Christine Cossler and Christina Peer are partners in the Education Services group of Cleveland-based Walter | Haverfield LLP.

Educational podcast provides insights on latest court cases and helps
guide school superintendents and administrators through quickly
changing regulatory landscape

To help school districts stay abreast of the latest court decisions and agency guidance and provide insights on best practices for handling today’s most complex issues, Walter | Haverfield education law attorneys Miriam Pearlmutter and Lisa Woloszynek have launched “Class Act: Updates in Education Law”, a podcast series covering an array of timely issues.

The legal challenges facing schools today are more numerous and complex than ever before. Transgender students, cyberbullying, social media protocols and a significant increase in the needs of special education students are just a few of the many issues facing schools of all sizes in both urban and rural settings. Add to that the rapidly changing rules and government regulations and it’s clear that school officials have more to handle than what already busy schedules can accommodate.

The “Class Act: Updates in Education Law” podcast, which is believed to be the first of its kind specifically targeting school districts, is just one more way that Walter | Haverfield is reaching out to enhance the understanding of the challenges schools face today. Walter | Haverfield’s education law attorneys also provide information to school districts through legal updates presented at a variety of local, statewide and national conferences. The “Class Act: Updates in Education Law” podcast series provides educators an opportunity to get legal updates from the comfort of their offices, homes or cars.

The first topics covered in the Class Act: Updates in Education Law podcast include Section 504 Plans and IEPs, transgender students, and religion in the classroom. “Class Act: Updates in Education Law” is available on iTunes and Stitcher, or you can link to the podcast from Walter | Haverfield’s website at walterhav.com/services/education#podcasts.

In this episode, Miriam and Lisa tackle a sometimes-thorny issue: students’ religious rights and how the First Amendment sometimes collides with school policies and practice. Learn about the law and enjoy a plethora of fascinating cases from all around the country! Can a district require students to cut their hair? Is student-led prayer before football games allowed? What about at graduation? What if a child writes an essay about her faith?

Class Act: Updates in Education Law tackles a fascinating and controversial topic: What does the federal government require of school districts serving transgender students and how did we get here? Lisa and Miriam summarize recent regulations issued by the Office for Civil Rights and discuss some of the more prominent case law, including Gloucester County School Board v. G.G., the famous Virginia case pending before the Supreme Court. We chat about why this topic is so controversial and how school districts across the country are reacting to these developments.

In the second part of our Supreme Court term preview, we explore Endrew F. v. Douglas County Schools, a case that addresses the most fundamental question in special education today: What level of education does a school district have to provide to its IEP students to meet federal FAPE obligations? Is any educational benefit enough to comply with the IDEA or must districts provide meaningful educational benefits to their special education students? And what is a meaningful educational benefit anyway?

In our inaugural episode we talk about Fry v. Napoleon Community Schools, an education law case pending before the Supreme Court this term. What is the difference between IDEA and Section 504? What remedies are available to parents under these laws and how will the Court’s decisions affect school districts? Can parents take claims straight to court and will this circumvent the administrative process?

On March 22, 2017, the United States Supreme Court, in the case of Endrew F. v. Douglas County School District RE-1, created a new standard for determining whether a student with a disability under the Individuals with Disabilities Education Improvement Act (IDEIA) has been provided with a free appropriate public education (FAPE). In Endrew F., the Court was asked to decide the degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE. The lower court in Endrew F. used the “merely more than de minimus” standard that had been adopted by the Tenth Circuit Court of Appeals. The U.S. Supreme Court unanimously rejected this standard and instead held that in order “to meet its substantive obligation under the IDEIA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, at *1 (U.S. Mar. 22, 2017) (emphasis added).

In reaching this decision, the Court reasoned, “[i]t cannot be right that the IDEIA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.” Id. at *2. Notably, the Court did not reject or overrule Rowley v. Hendrick Hudson School District, the U.S. Supreme Court case that first established a standard for the provision of FAPE. Rather, the Endrew F. Court noted that Rowley “did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level.” Id. The Court further explained that a child’s IEP need not “aim for grade-level advancement if that is not a reasonable prospect.” Id. However, that child’s “educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Id. The Court went on to state that every child should have the chance to meet challenging objectives.

In setting forth this new standard, the Court rejected the parents’ argument that the IDEIA requires school districts to provide children with disabilities with educational opportunities that are “substantially equal to the opportunities afforded to children without disabilities.” Id. The Court noted that this standard had been rejected by the Supreme Court in Rowley and that Congress has not materially changed the definition of FAPE since Rowley was decided. Consequently, the Court declined to adopt the higher standard advocated by the parents.

The standard adopted by the Endrew F. Court does not create a bright-line rule. Rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. at *3. This standard appears to be similar to the heightened “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education. Both Endrew F. and Deal require an analysis of the child’s capabilities and potential for learning to determine the appropriateness of the child’s IEP.

From a practical standpoint, the Endrew F. standard places renewed emphasis on the need for comprehensive evaluations (and reevaluations) of students with disabilities. Without this data, it will be difficult for a school district to demonstrate that a child’s progress is “appropriate in light of the child’s circumstances.” School districts must also continue to be mindful of the requirement that a student’s IEP goals must align with the needs set forth in the evaluation team report. Additionally, districts should continue to ensure that intervention specialists and related service providers collect data in accordance with each student’s IEP and reconvene IEP teams as necessary based on the data collected.

Christina Peer is a partner and the Chair of the Education Services group of Cleveland-based Walter | Haverfield LLP.

In last week’s high-profile decision, the Supreme Court permitted parents to skip the due process complaint procedures if their claims relate primarily to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), rather than the Individuals with Disabilities Education Improvement Act (“IDEIA”). The IDEIA requires school districts to provide qualifying students with a free appropriate public education (“FAPE”) through specially-designed instruction and related services. Section 504, however, is a more general law prohibiting discrimination and obligating districts to provide equal access to public institutions to all persons with disabilities. In the past, courts have often required dissatisfied parents to exhaust the special education due process procedures, even if their claims related primarily to Section 504, and did not involve FAPE under the IDEIA. In Fry v. Napoleon, however, the Supreme Court rejected this approach and provided new parameters for claims appearing to relate to both laws.

This case features E.F., a middle school student with cerebral palsy and a service dog (a goldendoodle named Wonder). Because the dog helped E.F. with various needs throughout her day (opening doors, retrieving dropped items, etc.), E.F.’s parents wanted Wonder to accompany her to school on a full-time basis. The school refused, citing the one-on-one aide assigned to assist E.F. throughout the day as part of her IEP. After the Office for Civil Rights sided with the parents, the school agreed to allow the dog in school to provide E.F. with assistance during the day. E.F.’s parents, however, were concerned about potential resentment issues, and chose to move their child to a different district. The parents then sued in federal court, alleging that the district violated Section 504 and the Americans with Disabilities Act (“ADA”).

The lower courts dismissed this lawsuit, noting that – because any alleged harm to E.F. was generally education-related – the parents were first required to file an IDEIA due process complaint before suing in court. The Supreme Court, however, explained that if a lawsuit does not hinge on a FAPE analysis, the hearing officer cannot provide the requested relief, and a due process hearing is not proper – and not necessary.

In determining whether a complaint primarily addresses FAPE, the Court offered the following tests:

  • First, could the plaintiff bring the same claim if the problem took place at any public facility, not just a school?;
  • Next, could any adult at the school have brought the same claim?

Affirmative answers to these inquiries would indicate that the matter is not a true IDEIA claim, and that a due process hearing is unnecessary. The Court also suggested that starting the IDEIA due process, only to drop it later in favor of going to court, could indicate that the conflict was related to FAPE all along. In short, the Court sought to strike a balance between allowing parents to pursue their claims in federal courts and protecting school districts from FAPE complaints disguised as Section 504 allegations. In moving forward, school districts and their attorneys will need to carefully review parents’ claims and factual history before determining the best course of action.

Miriam Pearlmutter is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

The Trump Administration made a significant move Wednesday night in the national debate regarding transgender students’ rights by withdrawing previously issued guidance from the United States Department of Education (“DOE”) and Department of Justice (“DOJ”) on the topic. The prior guidance from the DOE and DOJ, which was issued by the Obama administration in May 2016 (“May guidance”), interpreted Title IX as requiring treatment of students in a manner consistent with their gender identity. The May guidance provided examples of policies and practices to support transgender students, such as utilizing the name the student has selected, requiring access to restrooms, locker rooms, and overnight accommodations for school trips in accordance with the gender with which the student identifies.

Amidst significant backlash, numerous states sought to invalidate the May guidance through a federal lawsuit in Texas v. United States. The Trump Administration’s Dear Colleague letter which rescinded the May guidance referenced that lawsuit and further stated that the May guidance lacked a formal public vetting process, extensive legal analysis, and an explanation of how the position is consistent with Title IX language. The Trump Administration’s letter also stated that there are conflicting national court decisions and further noted the role States and local school districts should play in educational policy development.

While the May 2016 guidance has been rescinded in favor of State control over the issue, the Trump administration noted that transgender students should be protected from discrimination, bullying and harassment. In a press release, the U.S. Secretary of Education Betsy DeVos emphasized a federal mandate and moral obligation to protect all students and ensure a safe and trusted environment, in which to learn and thrive.

This rescission of the May 2016 guidance comes just weeks before the United States Supreme Court is set to hear oral arguments in Gloucester County School Board v. GG. The Court was set to review whether deference should extend to the DOE’s prior interpretation of Title IX in relation to gender identity. With this new development, the Supreme Court must choose whether or not it will address these questions now.

Finally, while the DOE and DOJ’s prior position has been rescinded by the Trump Administration, the recent decision of the federal Sixth Circuit Court of Appeals in Board of Education of Highland Local School District v. United States Department of Education, et al. remains in effect at the moment. The Highland Court affirmed the decision of the United States District Court for the Southern District of Ohio, which found that a transgender student should be allowed access to the restroom of the gender with which the student identified and should also be called by the pronoun of the gender with which the student identified. The Sixth Circuit Court of Appeals is binding on public school districts in Ohio, absent a contrary ruling from the United States Supreme Court. Thus, school districts should continue to watch for further developments and consult with legal counsel as issues arise.

Lisa Woloszynek is an associate in the Education Services group of Cleveland-based Walter | Haverfield LLP.

On February 28, 2017, Miriam M. Pearlmutter will present a Bullying and School Safety Legal Update at the Summit County Educational Service Center, in Cuyahoga Falls, Ohio.

On January 12, 2017, Christine T. Cossler gave a presentation on Transgender Issues at the Educational Service Center of Cuyahoga County, in Independence, Ohio.

The ongoing debate regarding the responsibilities of public school districts with respect to transgender students has continued to be fueled by a new decision from the United States Court of Appeals for the Sixth Circuit. On December 15, 2016, the Sixth Circuit issued an Order in Board of Education of Highland Local School District v. United States Department of Education, et al., affirming the decision of the United States District Court for the Southern District of Ohio, which blocked that school district’s attempt to prevent a transgender student identifying as a female from using the girls’ restroom at her school. Both the lower court’s decision and the Sixth Circuit decisions in Highland align with the DOE interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity.”

The Highland Court, in a 2-1 decision, explained that “[t]he crux of this case is whether transgender students are entitled to restroom access for their identified gender rather than their biological gender at birth.” Noting that the law in the Sixth Circuit prohibits discrimination based on a person’s transgender status, the appellate court refused to grant the school district’s request to stay a preliminary injunction issued by the district court allowing the student to access the restroom of her identified gender. While Highland argued that such an allowance would result in irreparable harm, the Sixth Circuit disagreed.

The appellate court examined the student’s individual circumstances, along with broader public policy interests, in making this decision. The Sixth Circuit’s decision explained that the student, “a vulnerable eleven-year-old with special needs” would suffer significant harm if prevented from using the girls’ restroom. Specifically, the majority pointed to the student’s “personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, [to] differentiate her case from” the Gloucester matter. In Gloucester, the Supreme Court granted a Virginia school district’s request for a stay, where the issue involves a high school transgender student’s request to use the boys’ restroom.

In Highland, the court explained that “staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction [and] further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom…” The dissent argued that the status quo should have remained in place until the U.S. Supreme Court has issued a decision regarding this issue, as “similar treatment of similar plaintiffs is the essence of equal justice under law.”

The Supreme Court is set to decide the Gloucester case in 2017. The decision in Gloucester should resolve the issue of whether courts must provide deference to the U.S. Department of Education’s (“DOE”) interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity” which could be different than the student’s sex at birth.

While we await the Supreme Court’s decision in Gloucester, school districts should take note that, although the Highland decision was limited to the specific facts in that case, decisions from the Sixth Circuit are binding authority in Ohio.

Sara Markouc is an associate in the Education Law Services Group of Walter | Haverfield LLP.

The national debate regarding transgender students’ rights and the obligations of school districts has developed rapidly this year. Courts across the country, including in Ohio, have issued varied decisions on these issues and the United States Department of Education (“DOE”) and the United States Department of Justice (“DOJ”) have issued controversial guidance. On October 28, 2016, the United States Supreme Court agreed to hear the recent Fourth Circuit Gloucester County School Board v. GG case, regarding bathroom use policy in relation to a transgender student. So, clarification on some of the issues facing districts may be on the horizon.

The Gloucester case began when a school district adopted a policy requiring students to use the restroom or locker room of the student’s biological gender. A transgender student had been permitted to use the boys’ restroom for several weeks before this policy, but that permission was terminated after the policy was implemented. The student subsequently sued the school board under the Equal Protection Clause and Title IX of the Education Amendments of 1972 (“Title IX”) challenging the school board’s policy, The student also sought an injunction to permit his use of the boys’ restroom.

As the case moved up through the courts, the U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student’s Title IX claims. However, in April, the U.S. Court of Appeals for the Fourth Circuit found that the District Court should have given deference to the DOE’s interpretation. Under the DOE’s interpretation, students should be allowed to use the restroom of the gender with which they identify. The Fourth Circuit reversed the District Court and remanded the case for further proceedings with instructions to give deference to the DOE’s interpretation. In reaching this conclusion, the Fourth Circuit relied on a 2015 opinion letter from the DOE’s Office for Civil Rights (Letter to Prince Jan. 7, 2015) which interpreted Title IX as to treat students in a manner consistent with their gender identity. In its decision and application of the DOE’s interpretation, the Fourth Circuit relied on a principle from a prior court decision, Auer v. Robbins, that courts should generally defer to an agency’s interpretation of its own regulation. The United States Supreme Court granted an emergency petition to stay the decision while the case continues. Thus, the school board’s policy remains in effect for the time being.

While this case revolves around a high-profile topic, the issue before the United States Supreme Court is quite technical. The Court will determine if Auer deference should extend to an unpublished agency letter and if the DOE’s regulatory and specific interpretation of Title IX (a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity”) should be given effect. The latter determination will have robust implications, especially in light of the DOE and DOJ’s 2016 published Dear Colleague Letter guidance, which many states are now challenging in court.

Several prior client alerts address the development of this topic. Please access them below for additional background information:

Ohio Court Weighs in on Transgender Student
U.S. Department of Education and Justice Weigh In on the Legal Developments Regarding Transgender Students
Legal Developments Regarding Transgender Students
The U.S. Supreme Court and Transgender Students

Lisa H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.

By Christina Peer and Lisa H. Woloszynek

Under the Individuals with Disabilities Education Improvement Act (IDEIA), public schools must provide a free appropriate public education (FAPE) to students with disabilities. The degree of “educational benefit” a child must receive in order for the school district to have provided a FAPE has been a question that school districts across the country have grappled with for decades. But clarification is in sight as the United States Supreme Court will hear the case of Endrew F. v. Douglas County School District RE-1. The central issue in Endrew F. is defining the level of educational benefit a school district must confer on children with disabilities to provide them with the FAPE guaranteed by the IDEIA.

In 1982, the United States Supreme Court decided Rowley v. Hendrick Hudson School District and held that school districts are not required to maximize the potential of a child with a disability in order to provide FAPE. Rather, school districts are required to provide a program that is reasonably calculated to confer an educational benefit. In Rowley, the Court held that achievement of passing marks and advancement from grade to grade were indicators that FAPE had been conferred for a student educated in a regular education classroom setting. Unfortunately, the Court in Rowley did not address the level of “educational benefit” that must be conferred. This question is especially difficult in situations where students are not progressing successfully through school in a general education classroom. For example, what must a district demonstrate in order to prove that it provided an “educational benefit” to a student with autism or multiple disabilities who is being educated using a modified curriculum?

The appellate courts are not in agreement on their interpretation of what constitutes sufficient “educational benefit” in this type of circumstance and there are essentially two different standards. Some courts, including the Tenth Circuit in Endrew F., rely on a “merely more than de minimis” (i.e., just above trivial measurement) standard. This is in direct controversy with the Sixth Circuit (which includes Ohio) and the Third Circuit, which utilize the higher “meaningful educational benefit” standard. The “meaningful educational benefit” standard, as outlined by the Sixth Circuit Court in Deal v Hamilton County Board of Education, requires an analysis of the child’s capabilities and potential for learning to determine how much of an educational benefit must be provided to equate to meaningful, with an eventual goal of self-sufficiency where possible. The Deal Court also noted that “[i]n conducting this inquiry, courts should heed the congressional admonishment not to set unduly low expectations for disabled children.” The U.S. Solicitor General as well as Autism Speaks and the Public Interest Law Center are in favor of this heightened standard for the country and have weighed in with their input through amicus curiae briefs in Endrew F.

Endrew F.’s parents seek, through their Petition, to resolve this issue to “ensure that millions of children with disabilities receive a consistent level of education, while providing parents and educators much-needed guidance regarding their rights and obligation.” Ultimately, the United States Supreme Court could uphold either of the established standards or could create an entirely new standard for the provision of FAPE. Whatever the outcome, school districts and parents alike would be well served by a decision that includes concrete standards to be used when determining whether a program provided a FAPE.

Oral arguments in the Endrew F. case have not been scheduled, but are expected to be held next year.

Christina Peer is a partner, and Lisa H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.

Miriam PearlmutterThe Family Policy Compliance Office (“FPCO”) now offers school districts a tentative framework for responding to parents’ requests for videos. Often such footage – a security video of a cafeteria fight, for example – includes images of multiple students, which may all be individually protected by FERPA, the Family Educational Rights and Privacy Act. For years, school districts struggled with how to handle such requests, what to release, to whom, and what to redact, if anything.The FPCO’s long-awaited guidance document (Letter to Wachter) describes a school district that received a records request for video footage of a hazing incident. The incident involved six perpetrators and two victims. The request came from a parent of a perpetrator, but the district noted that it did not have the resources to redact other students’ images. The FPCO explained that the video footage was an educational record for both the victims and the perpetrators, but would not be considered a record for bystanders who were not involved in the incident. Further, the FPCO explained that if redaction was impossible or would destroy the record’s meaning, the district may allow the parent to inspect and review the video, even if other students are pictured. Notably, FERPA requires districts to allow parents (or eligible students) the opportunity to inspect and review the record, but does not require – in most circumstances – districts to provide parents with a copy.

In determining whether to release video footage depicting multiple students, districts can begin by considering the following questions:

  • Is the video footage an educational record for any student? If not, FERPA does not apply.
  • If the video is an educational record of multiple students, will parents of the other students featured in the footage consent in writing to the release of the unredacted educational record? If they would, this may be the simplest way to comply with FERPA requirements.
  • Is it possible to redact the video footage so as to conceal the other students’ identity but also maintain the record’s meaning? If not, the district may allow parents to view the unredacted record even if other students are pictured.
  • Must the district provide a copy of the video to the requesting parent? Districts are not obligated to provide copies unless requiring parents to come in and review the video effectively prevents them from accessing the record. This might occur if a parent lives far away or is disabled.

Although the FPCO guidance is informative, it remains unclear how these directives will interact with other statutes affecting student records, including Ohio’s Sunshine Laws. Issues related to the release of video footage that contains student images are extremely fact specific, and the information in this alert is intended to provide general guidance. School districts should work directly with legal counsel regarding specific situations.

Miriam Pearlmutter is an attorney at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

Megan GreulichL Burleson

As one of the few full-service law firms in Ohio with a dedicated education law practice, Walter | Haverfield is proudly adding two new attorneys to its team in the firm’s Columbus office. Both attorneys will serve an increasing client base of school districts in Central and Southern Ohio.

Lisa Burleson joins Walter | Haverfield as a partner after seven years working in education law. Previously, she led her own education law practice in Columbus, was associated as Of Counsel with two other law firms in Columbus and served as Deputy Director of Labor Relations for the Ohio School Boards Association. Burleson works closely with school districts as general counsel and provides various types of legal services including labor negotiations, labor relations, employment, special education, Title IX, student issues, litigation and Board governance issues.

“This move is a fantastic opportunity for my clients to have access to a broad support base with Walter | Haverfield’s Education Law group, and I’m excited to grow the firm’s Columbus practice,” said Burleson, who lives in Upper Arlington with her husband and two children. “I’m proud to be a part of such a distinguished firm and work with such talented education attorneys.”

Megan Greulich joins Walter | Haverfield as an associate. Previously, she worked at the Ohio School Boards Association in Columbus for nine years, most recently as a senior staff attorney. There, Greulich provided legal information, guidance and policy recommendations to boards of education, attorneys and administrators across the state via the association’s statewide legal hotline, presentations and publications.

“I’m thrilled to join such a reputable education law team,” said Greulich, who lives in Westerville with her husband and three children. “It gives me the chance to utilize my skills in new ways and continue to assist school districts, which is what I love.”

“Lisa and Megan bring a wealth of knowledge to our group,” said Christina Peer, head of Walter | Haverfield’s Education Law team. “Their assistance and counsel will give us an excellent opportunity to better serve school districts throughout the state. We are truly excited to have them on board.”

Burleson is very active as a volunteer in her community and her children’s school. She also serves on the Columbus Bar Association Admissions Committee.

Greulich currently serves as Chair of the Ohio State Bar Association’s Education Law Committee, is an Ohio State Bar Foundation Fellow and has volunteered with the Columbus Urban League, her children’s school and the Columbus City School District’s Reading Buddies program.

Both Burleson and Greulich are graduates of Capital University Law School and are members of the Ohio State Bar Association as well as the Columbus Bar Association.

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public organizations and high-net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Today, our team of nearly 80 attorneys is focused primarily in the areas of business services, real estate, intellectual property, labor and employment, education, tax and wealth management, hospitality and liquor control, litigation and public law.