Esu 15 and 16 2014 board workshop

2014 ESU 15 & 16 Board Member Workshop

LEADERSHIP AND THE LAW Karen Haase Bobby Truhe Harding & Shultz (402) 434-3000 schoollaw@hslegalfirm.com H & S School Law @KarenHaase @btruhe

Transgender Issues

What’s on the Agenda?  Transgender Staff Rights  Transgender Student Rights  Transgender Students in Athletics

EEOC: Macy v. Holder  Applied for job with Bureau of ATFE  Discussed job with ATFE manager while presenting as a man  Given the job pending BG check  Emailed BG company about transition  Hired a different male applicant

Macy v. Holder  “Sex discrimination” = sex (biological) and gender (identity) in Title VII  U.S. Supreme Court: Can’t discriminate on gender norms  Pretext based on changing reasoning • Would have hired Macy as a man  ATFE discriminated based on gender

Macy v. Holder “When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’ This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a nonstereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

Cruzan v. Sp. Sch. Dist. No 1  Male teacher transitioned to female  Cruzan saw the teacher in the women’s bathroom shortly after transition  Cruzan: sex and religious discrim. and hostile work environment  8th Cir.: no adverse employment action • Note: MN has anti-discrimination law

Other Laws  D.C.: must have unisex bathrooms in public places like restaurants, schools  Omaha: can’t discriminate based on sexual orientation or gender  MN Case: employer can assign bathroom based on biological makeup  NE AG: anti-discrimination laws re transgender are illegal

South Dakota EEOC Case  Cori McCreery fired from grocery store supervisor job after transition  Filed with EEOC  Store agreed to: • Pay $50,000 • Train employees • Apologize • Give neutral recommendation letter

So, what’s the law?  EEOC: transgender employees have protection from discrimination  NE AG: anti-discrimination laws not permitted  8th Cir: no discrimination claims by affected employees…  SCOTUS: gender identity stereotypes can be basis of Title VII claim

Transgender Students

OCR on Transgender Students “Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender based harassment.”

OCR: Arcadia  Biological female student identified as a male  District refused to allow student to use boys’ locker room and bathrooms  On camping trip, student was forced to stay in a cabin with a chaperone  Student missed class time to use unisex bathroom

OCR: Arcadia  Arcadia settled with OCR, agreed to: • Treat the student as all male students • Allow student to use male-assigned facilities • Revise policies to prevent gender discrimination • Provide training to staff • Yearly reports to OCR

Other Laws and Cases  Equal Access Act: applies to LGBT student groups  Montgomery: MN case holding that failure to address harassment violates Title VII and Title IX as “harassment based on sex”

First Amendment Hypo  Student wants to dress and present consistent with gender identity  Other students harass the transitioning student  What should the district do?

(Pat) Doe v. Yunits (MA 2000)  7th grade male presenting as female  Wore women’s clothes, makeup  Dress code: “disruptive to educational process or threaten student safety”  Principal sent student home to change  8th grade: had to get daily approval • Sometimes stayed home

Doe v. Yunits (MA 2000)  Doe was required to repeat 8th grade  Began wearing padded bras, skirts, “tight shirts,” wigs, and high heels  Fight with fellow student re oral sex rumors  Doe “blew kisses” at male students  Doe grabbed buttocks of male student  Doe provocatively danced in the halls

Doe v. Yunits (MA 2000)  Suspended 3 times for using ladies’ restroom  Admins: no more padded bras, skirts, dresses, or wigs  Was not allowed to enroll if Doe wore “girls’ clothing or accessories”  Sued school

Doe v. Yunits (MA 2000) “A school should not be allowed to bar or discipline a student because of genderidentified dress but should be permitted to ban clothing that would be inappropriate if worn by any student, such as a theatrical costume, and to punish conduct that would be deemed offensive if committed by any student, such as harassing, threatening, or obscene behavior.�

Doe v. Yunits (MA 2000)  Court • Protected expression • Important to health and well-being • Fighting means it had an effect on other students • Tinker: no disruption, the behavior is the issue, not the clothes

 Dreaming Bear: 8th Cir. case

Bathroom Usage  Maine Civ. Rights Comm.: bathroom usage can be basis of discrimination  Colorado Civ. Rights. Division (2013) • Coy Mathis 6-y.o. transgender female • Identified by genetalia • Can’t be required to use boys’ bathroom • Can’t be required to use staff bathroom

Transgender Students in Athletics

Sports / Locker Room Usage  Wash.: evidentiary hearing on gender identity transition  IOC/USATF: requires gender reconstruction surgery  NCAA • F  M: men’s teams, if on testosterone • M  F: women’s team, after a year

California Law  AB1226, passed in August 2013  Allows • Student to choose restroom • Student to choose locker room • Student to choose athletic teams

 Law likely to be challenged

California Law

NSAA “Policy”  Had indicated a possible proposal in November, 2013  Interested people attended meeting to oppose  No policy proposed; schools encouraged to adopt policy  ACLU sent out a statement after meeting

Considerations  Begin thinking about a policy  Watch for the policy recommended

by NSAA  Nondiscrimination  Student safety

Dinner!

Insurance Issues  Obamacare  EHA and Domestic Partners

Employer Mandate  Large Employers must either • Make affordable, qualifying coverage available to all full time employees • Pay a “shared responsibility tax” to supplement the cost of those employees obtaining insurance on the exchange

Employer Mandate Delayed  July 3, Administration announced no enforcement of employer mandate until 1/1/2015  Law hasn’t changed, enforcement has (and that makes all the difference)  Individual mandate still being enforced https://www.nebraskablue.com/tools/subsidychecker/?ls=sm

Transition Relief Uncertainty

Transition Relief Uncertainty  What is transition relief? (6 versus 12 months)  What is the uncertainty?  Planning ahead • Without transition relief, first date schools could be taxed is 1/1/15 • With transition relief, first date schools could be taxed is 9/1/15

Schools’ Potential Taxes  Option 1: Offer NO Insurance • If 1 uncovered employee obtains insurance on the exchange and receives a tax credit, then • Employer pays $2,000 per total number of employees minus 30

Schools’ Potential Taxes  Option 2: Offer “unaffordable” Insurance • If 1 uncovered employee obtains insurance on the exchange and receives a tax credit, then • Employer pays $3,000 per employee who meets all three criteria (unless that is more than the “NO insurance” tax) • A worthwhile option to consider

No Shame in Paying Taxes

What DO schools need to do?  Use info you’ve gathered on Employee Hours  Start to consider options

Timeline  What to do NOW: • 3/1/14: decision re offering • Make decision on cutting hours  Transition relief?

• EHA Deadline: subgroups ASAP • EHA Deadline: enrollment 7/1/14

Domestic Partners  EHA now provides coverage for same sex “spouses”  2015, EHA will include unmarried “domestic partners”  Question: Can you offer to some but not others?  Nebraska Constitutional issue  Tax issues

Search and Seizure

What is a Search?  any government conduct that intrudes into protected privacy interests, including looking into places not out in the open or otherwise exposed to public view – it includes peeking, poking or prying into non-transparent containers such as lockers, desks, purses, backpacks, folders, books and articles of clothing

Examples of a Search  Examining items or places that are

not exposed to public view  Touching or patting down a student’s body or clothing  Opening and inspecting personal possessions

Examples of a Search  Handling or feeling any closed item

to determine its contents  Using extraordinary means to enlarge a view of listen into closed or locked areas, containers or possessions  Reading material in a book, journal, notes, etc.

It’s not a Search if:  You observe an object in plain view

where it is exposed to the public  The student authorizes you to conduct the search  You examine an object after a student denies ownership of it

It’s not a Search if:  You examine an object that a student has abandoned  You detect anything openly exposed to the senses when you are in a place where you have a right to be  You use extraordinary means to enhance perceptions in open areas

New Jersey v. TLO

TLO’s Purse

US Supreme Court  Standard is “reasonable suspicion”  Reasonable suspicion does not require absolute certainty  NJ Court’s decision “puzzling”  Choplick’ s search of TLO’s purse was reasonable based on information provided to him, then on finding cigarettes and rolling papers

US Supreme Court Mr. Choplick’ s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion” or “hunch,” rather it was the sort of “common sense conclusion about human behavior” upon which “practical people” – including government officials – are entitled to rely

Was Search Reasonable?

For a search to be reasonable, a school official must satisfy two separate inquiries: 1. Was the search justified at its inception?

2. Was the scope of the search appropriate?

Desks and Lockers

Desks and Lockers  School desks and lockers are school property and may be subjected to: • An area search • Search for particularized suspicion  Caution – have reasonable suspicion to search contents that are not in plain view

Strip Searches 

Searching for Stolen Items  Beard v. Whitmore Lake Sch. Dist., No. 031904/1942 (6th Cir. April 4, 2004) • Missing prom money • Strip searches in gym class • Police advised

 Lamb v. Holmes, 2005 WL 1183160 (Ky. May 19, 2005) • Missing gym shorts • Made kids pull up shirts and lower shorts

Searching for Stolen Items  Carlson v. Bremen H.S. Dist. 228, 423 F.Supp. 2d 823 (N.D. Ill 2006) • Missing $60 • Last girls in locker room made to strip • School: just like changing into gym clothes

 Castaneda v. Wendell, 2006 U.S. Dist.

LEXIS 49238 (E.D. Ca. 2006) • Missing $21.00 • Searched everyone’s backpacks and purses • Detained plaintiffs, made to strip to undies

Searching for Drugs  Phaneuf v. Fraikin, No. 04-4783 (2d Cir. May 19, 2006) • Tip that plaintiff had for field trip • Searched bag, found cigarettes and lighter • Called mom, made mom raise shirt and bra, drop skirt and pull open panties

 Maimonis v. Urbanski, 2005 WL 1869208 (7th Cir. Aug. 4, 2005) • Girls caught smoking in the car • refused to consent to search of purse; 10 days

Electronic Devices

Electronic Devices  Expectation of privacy?  Klump v. Nazareth Area Sch. Dist.

• Teacher confiscated kid’s phone • Rule: may carry but not use phone • Teacher and assistant principal: - Called 9 students

- Accessed text messages/voice mail - Used instant messaging

Klump v. Nazareth Area    

Is there an expectation of privacy?

Rule: may carry but not use phone Teacher confiscated student’s phone Teacher and assistant principal:  Called 9 students  Accessed text messages/voice mail  Used instant messaging

Klump v. Nazareth Area  Court used TLO standards  Justified in confiscating phone  Calling students and accessing texts and voice mail was beyond the permissible scope of the search • No reason to think the search would reveal a violation of school policy  Case settled for nominal amount

Recommendations  Have a clearly worded board policy and handbook provision  If you confiscate a phone:  Ask the student’s permission to access information on it  If the student refuses, call your lawyer before going further

On or Off School Grounds

The School’s Jurisdiction  J.P. v. Millard Public Schools (NE S. Ct. 2013) • • • • • •

J.P. drove his truck to school Parked on street across from school J.P. left school w/o permission; lied Asst. Principal investigated Had J.P. empty his pockets - nothing J.P. refused to permit truck search

J.P. v. Millard  Asst. Prin. searched about 10 min.  Found drug pipes and zig zag papers  Student handbook prohibited possession of drug paraphernalia  J.P. suspended for 19 days  District Court: search of truck violated 4th amendment  Supreme Court: affirmed Dist. Ct.

Nebraska Supreme Court  Authority to search implied by the Student Discipline Act  School officials have authority to regulate conduct on school grounds  Parking off school grounds was not a school-sponsored event  School officials can report suspected off-campus conduct to the police

Drug Sniffing Dogs

Dog Sniff Cases  US v. Place, 462 US 696 (1983) • “a sniff is not a search”

 Bundick v. Bay City Indep. Sch. Dist., 2001 WL 422728 (S.D. Tex. 2001) • Drug dog alerted to truck • Search found illegal knife

Recommendations    

Have board adopt a policy Inform students and parents Use only properly trained dogs Sniffing the air outside a locker or a car is not a search  Do not let dogs touch students  Have the dogs sniff desks and student possessions, but not the students

Sniffing Students  Horton v. Goose Creek. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) • Ct: search because dogs places noses on students, scratched and pawed at them • Not reasonable because no individualized suspicion

Sniffing Students  BC v. Plumas Unif. Sch. Dist., 192 F.3d 1260 (9th Cir. 1999) • Dogs stationed outside classroom door • Ct: “highly intrusive because dogs trigger fear” • No individualized suspicion

Sniffing Students  Doe v. Renfrow, 631 F.2d 7th Cir. 1980) • Dogs taken up and down aisles of classroom • Ct: sniff no violation • Student strip searched because drug dog alerted to her • Ct: strip search was a violation

10 Practical Search Tips  Begin with lockers and cars, then move to bags and conclude with students  If in doubt, seek advice from the superintendent and/or lawyer  Tell the student what you are looking for and give him/her the opportunity to surrender the item  Bring the student to a private place

10 Practical Search Tips     

Have an official present as a witness Look before touching or rummaging Begin where the object is likely to be Conduct a limited “pat down” Require the student empty pockets when pat down reveals something  Stop when you find it

2014 ESU 15 & 16 Board Member Workshop

LEADERSHIP AND THE LAW Karen Haase Bobby Truhe Harding & Shultz (402) 434-3000 schoollaw@hslegalfirm.com H & S School Law @KarenHaase @btruhe