NISAAA 2013

Legal Update for Activity Directors Karen Haase & Bobby Truhe (402) 434-3000 H & S School Law khaase@hslegalfirm.com @KarenHaase btruhe@hslegalfirm.com @btruhe

Today’s Plan

Today’s Plan  Authorized Expenditures (Food!)  Transgender Students  Disabled students and Extracurriculars

Authorized Expenditures

Food!  Local Gov’t Misc. Expend. Act • Permitted expenditures • Expenditures allowed by law

 Recent Audits  NADC Guidelines…

NADC Guidelines [T]here are some general rules which may be beneficial to municipal officials and municipal employees. They are:  A) The manner in which government does business sometimes is, and must be, different from the way that private industry does business.  B) The government body expending public funds should always be able to articulate the statutory or other legal basis for the expenditure. “We’ve always done it this way” is not a legal basis.  C) A government body expending public funds should always be able to articulate the public purpose served by the expenditure.  D) Government resources are for government purposes only.

Expenditures on Food  Reimbursements at workshops, etc.

• Actual and necessary • Itemized claim • Approved by board • Prior authorization by policy or vote

 Meals Provided • Emergency situations • Volunteers (picking litter, snow removal)

Expenditures on Food  Recognition Dinner • 1 per year • Max cost established by board • Capped at $25 • Board may authorize separate department or volunteer dinners

Unauthorized Expenditures  Meals at board meetings  Snacks for board meeting attendees  State tournament sendoffs  State tournament rooms/meals  Food for staff meetings and PLCs  Booze, under any circumstances …

Unauthorized Expenditures  Spouses of public officials, unless the spouse is also a public official of the same “local government”  PTO meetings  Booster club meetings/concessions  (Pretty much anything you are questioning in your mind right now)

Authorized Expenditures  “Actual and necessary” meals • Personnel hearing • Student discipline hearings • SPED hearings

 School store from which students may purchase food

Authorized Expenditures  Non-alcoholic Beverages • Persons attending board meetings • Emergency situations • Volunteers • Recognition dinner

But it’s in my Activity Fund?!  DOESN’T MATTER  Once the funds are in any account belonging to the district, they are public funds subject to the same restrictions

Transgender Issues in Schools

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

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”  Likely proposal coming soon.  “A policy would provide guidance to ensure that a transgender student would be treated fairly and respectfully as eligibility is determined”  “The safety and protection of the student’s privacy, documentation, medical requirements, recommended procedures to determine eligibility, as well as legal and administrative responsibilities of the Association.”

NE Family Alliance  Urging Nebraskans to contact NSAA and advocate against and inclusive transgender policy • Unfair competitive advantage • Safety concerns • Financial burden

Proposed Solutions/Problems  Build a separate locker room • OCR: “gender” is protected class

 Enact policy allowing/disallowing transgender participation • OCR investigation • Political consequences

 Supervise bathroom/locker room use • Practical problems

Considerations  Review your policy  Watch for the policy used by NSAA  Nondiscrimination  Student safety

New Legal Issues Related to Disabled Students and Activities

OCR’s "Dear Colleague" Letter (1/25/13)

 OCR issued Dear Colleague letter on 1/25/13  Does not change the law or the regulations  Indicates an area of increased attention  Plaintiffs’ lawyers take their cues from OCR

Legal Update for Activity Directors Karen Haase & Bobby Truhe (402) 434-3000 H & S School Law khaase@hslegalfirm.com @KarenHaase btruhe@hslegalfirm.com @btruhe