Summer Law Institute - Jackson by Tennessee School Boards Association

S I S I R C L A G E L LEGISLATIVE E N I L N O T N MANAGEME L A U Q E S E C N CONSEQUE Y E N R O T T A M PUBLIC FORU W A L N O I T A C CASE EDU S S E C C A W D R A A O B S L T N E D U T R S E M M U T C I D R S E E V S T C I H E FORUMSIN STTTNI-TJUNUE 24, 2016 , JACKSON ICENSURE MEETINGS L E M I R C E C I T S U J POLICY Y T S E N O H E R U PROCED S S E C C A D R A O STUDENTS B T C I D R E V S C I FORUMS ETH W A L N O I T A C U D CASE E LICENSURE

SUMMER LAW INSTITUTE Doubletree – Jackson TN

Agenda

Friday June 24, 2016 8:00 – 8:05 WELCOME & OVERVIEW Randall Bennett, TSBA Deputy Executive Director & General Counsel 8:05 – 9:05 LEGISLATIVE UPDATE Ben Torres, TSBA Director of Government Relations and Policy/Staff Attorney 9:05 – 10:05 LEGAL REALITIES OF TRANSGENDER STUDENTS What’s Happening Around the Country Samuel L. Jackson, Attorney Lewis, Thomason, King, Krieg and Waldrop P.C. 10:05 – 10:25 BREAK 10:25 – 11:25 CRISIS MANAGEMENT Communication is Key! Debra Owen, Attorney Jackson, Shields, Yeiser & Holt 11:25 – 12:30 LUNCH (Provided) 12:30 – 1:30 IS STUDENT SPEECH FREE When May Students Face Consequences for Online Behavior? Christy Ballard, General Counsel Tennessee Department of Education 1:30 – 1:50 BREAK 1:50 – 2:50 EQUAL ACCESS AND LIMITED PUBLIC FORUM What the Courts Are Saying About Religion and Student Clubs Jennifer White, TSBA Assistant Director of Policy Services and Staff Attorney 2:50 – 3:35 CASE UPDATE Round-up of School Law Cases Randall Bennett 3:45 – 4:00 QUESTION & ANSWER/EVALUATION & WRAP-‐UP/ADJOURN

LEGISLATIVE UPDATE BEN TORRES TSBA DIRECTOR OF GOVERNMENT RELATIONS & POLICY/ STAFF ATTORNEY

Legislative Overview

June 24, 2016

Elected Superintendents HB 1968/SB 1606 by Powers/Niceley

•  As introduced, would have enacted the "Local School District Empowerment Act." •  Created a pilot program for elected superintendents. •  Required the department of education to study the pilot program. •  Adjusted duties of local boards of education in systems with elected superintendents. •  Failed in Senate Education. •  Will be back next year.

Director of Schools Salary HB 1425/SB 2633 by Sparks/Green

•  Prohibited the BOE from raising the director of schools’ compensation unless they included a raise for teachers. •  Amendment capped directors’ salaries to the governor’s pay. –  $187,500 ($15,625 per month)

•  Assigned to General Education Subcommittee in the Senate.

Student Testing Alternative HB 2160/SB 1984 by Ragan/Bowling

•  Authorized LEAs to use the ACT and ACT Aspire suite of assessments instead of the TCAP, TNReady, and end of course exams. •  Extensive testimony from superintendents, board members, and Dept. of Education oﬃcials. •  Failed in the Senate Education Committee.

School Vouchers HB 1049/SB 999 by Dunn/Gardenhire

•  Created a school voucher program in Tennessee. •  Sponsor placed the bill on the clerk’s desk. •  Required a simple majority to remove it from the desk and place it on the next available calendar. •  Once on the calendar only needed a majority to pass. •  Twenty-three amendments filed.

Resolutions on Education •  SJR 461 by Kelsey –  Proposed an amendment to Article XI, Section 12 of the Constitution of Tennessee to aﬃrm the general assembly's full discretion to determine the funding and eligibility for public schools.

•  HJR 493 by Dunn –  Proposed an amendment to Article XI, Section 12 of the Constitution of Tennessee to aﬃrm the general assembly's sole discretion in the establishment of a system of public schools.

Type A School Buses Public Chapter 529 by Byrd/Bowling

•  Type A school buses may be used for fifteen (15) years of service. •  Will hopefully allow districts to save money. •  State Board of Education has the authority to promulgate rules if needed. •  Eﬀective immediately.

Emergency Drills Public Chapter 575 by Pitts/Bowling

•  Law “removes a teacher's duty to perform fire drills, intruder drills, or any other safety or emergency drills.” •  But, this is a clean-up law. •  Requirements are in other portions of the code under the Fire Marshall responsibilities and they were duplicated in Title 49. •  Eﬀective immediately.

Special Education Vouchers Public Chapter 620 by Moody/Gresham

•  Allows a student attending a TN school for the first time to be eligible for an IEA. •  Changed the law to address students entering Kindergarten and transferring in from out of state. •  The DOE used this interpretation prior to the law changing. •  Eﬀective immediately.

Suicide Prevention Public Chapter 623 by Littleton/Roberts

•  Requires each LEA to adopt a policy on student suicide prevention. •  Must include prevention, intervention and postvention. •  All employees must attend the annual in-service training in suicide prevention. •  Contains a provision stating there is no cause of action for lack of training, but districts should not fully rely on that statement. •  Eﬀective July 1, 2016.

Religion in the Curriculum Public Chapter 660 by Hill, M/Bell

•  Requires each LEA to adopt a policy on the appropriate inclusion of religion in local curriculum and instructional materials. •  Make a syllabus available from grades 6-12 on social studies, science, math, ELA. –  Includes: standards, objectives, topics covered, assignments, field trips.

•  Eﬀective immediately.

Elective Courses Public Chapter 667 by Love/Tate

•  Starting in 2016-17, a SBOE approved computer science course can satisfy the elective focus requirement for graduation. •  Examples: software engineering, computer programming, computer graphics and design, computer-aided design. •  Original bill allowed these courses to meet the fine arts requirement. •  Eﬀective immediately.

Physical Activity Public Chapter 669 by Ragan/Bowling

•  Requires LEAs to implement non-structured physical activity: –  K-1: three (3) fifteen (15) minute periods per day –  2-6: two (2) twenty (20) minute periods at least four (40 days per week –  7-12: ninety (90) minutes of physical activity per week.

•  Does not include walking to and from class. •  90 minutes is the current requirement for all students per TCA 49-6-1021. •  Eﬀective July 1, 2016.

SBOE Charter Authorizer Fee Public Chapter 673 by Brooks, H/Gresham

•  Allows the SBOE to receive an annual authorizer fee of up to four percent (4%). •  Any unused funds must be returned to the charter school. •  Total amount of fees collected must be publicly reported annually. •  Eﬀective July 1, 2016.

AED Training Public Chapter 677 by Ramsey/Bailey

•  If a school has at least one (1) AED, then training must be scheduled for all school personnel. •  Must have an annual drill. •  Must conduct a drill so that the students are aware of the steps that must be taken if an event occurs. –  Not required to train the students in its use, but they need to be aware of what will occur.

•  Eﬀective July 1, 2016.

School Grading System Public Chapter 680 by Casada/Gresham

•  DOE will develop an A-F school grading system. •  Factors: –  TCAP/EOC scores –  TVAAS data or other measures of student growth –  Other outcome indicators of student achievement

•  Score will be on the district report card. •  Eﬀective immediately.

Changes to Pre-K Public Chapter 703 by White, M/Dickerson

•  Makes changes to the Pre-K requirements. •  All pre-K programs must meet the requirements of a “highly qualified pre-kindergarten program” as identified by the DOE. •  LEAs must submit additional information •  Required to use a specific growth portfolio model for evaluating teachers. •  Eﬀective immediately.

Physical Education Report Public Chapter 706 by Byrd/Tracy

•  DOE must complete an annual report of physical education programs in LEAs. •  Current report deals with the 90 minute physical activity requirement. •  Districts will be encouraged to use the results to develop their overall wellness plan. •  Assessments may be based on criteria developed by a “nationally recognized nonprofit heart association.” •  Eﬀective immediately.

Background Investigations Public Chapter 710 by Forgety/Tracy

•  Interscholastic athletic officials must undergo a satisfactory background check when registering to be an official. •  Will be done yearly. •  TSSAA recently enacted a policy to address this concern, but the General Assembly wanted to codify the requirement. •  Effective immediately.

Teacher Evaluations Public Chapter 712 by McCormick/Gresham

•  2015-16 TNReady data excluded from 2015-16 through 2017-18 school years if the exclusion results in a higher evaluation score for the teacher. •  Qualitative portion increases to account for the reduction. •  After the General Assembly adjourned the Commissioner suspended all 3-8 TCAP Testing. •  Eﬀective immediately.

8 Â

Open Records Law Public Chapter 722 by Dunn/Briggs

•  Requires LEAs to adopt a public records policy that includes: –  –  –  –

Process for making requests; Process for responding to requests; Process for charging fees, billing and payment; Identification of the following: •  Public Records Request Coordinator •  Records Custodian

•  Eﬀective July 1, 2016.

Bullying Investigations Public Chapter 783 by Ramsey/Ketron

•  Adds additional procedural requirements for bullying investigations. •  Investigations must be initiated with 48 hours of receipt. •  Intervention must be initiated within twenty (20) calendars days. •  Immediate notification to parent/guardian. •  Policy must be reviewed every three years and changes sent to the commissioner of education. •  Eﬀective July 1, 2016.

Home School Students Public Chapter 732 by Matheny/Bell •  Districts that administer AP and PSAT/NMSQT exams must provide notice of the dates on the school’s website. •  Home school students shall be allowed to take the exams at the public school. •  Eﬀective immediately.

Child Abuse Reporting Public Chapter 802 by Tate/Coley •  Every school must post the number to the Department of Children’s Services child abuse hotline. •  Sign must be at least the size of a sheet of paper (8 1/2 x 11). •  Eﬀective immediately.

Recruiting in Schools Public Chapter 807 by Womick/Ketron •  Districts must allow patriotic societies to recruit in schools. •  Organization must be listed in title 36 of US Code and have an educational purposes that aligns with curriculum standards & promotes civic involvement. –  Big Brothers-Big Sisters, Boy Scouts, Boys & Girls Club, FFA, Girl Scouts.

•  Given one (1) day at the beginning of the school year to speak to students for no more than ten (10) minutes. •  They must provide notice and get approval for the date and time. •  Eﬀective immediately.

Testing Transparency Public Chapter 844 by McCormick/Norris

•  Permits parents and teachers access to their students' questions and answers on state-required assessments. •  Eliminates two state-required examinations, one in the eighth grade and one in the tenth grade. •  Allows students to retake the ACT one additional time prior to graduation if funds are available. •  Similar Bills: HB 1089/SB 0439 by Dunlap/Haile; HB 1718/SB 2270 by Pody/Beavers

•  Eﬀective July 1, 2016.

Student Transfers Public Chapter 882 by Brooks, H/Massey

•  Removes certain requirements for LEAs accepting out of district students. •  Currently, students must get the sending and receiving LEA’s permission within two weeks from the school start date. •  This law removes the requirement of getting the sending LEA’s permission. •  Eﬀective July 1, 2016.

Liquor-by-the-Drink Public Chapter 885 by Alexander/Norris

•  Extends the liquor-by-the-drink tax revenue distribution an additional year. •  Currently, districts and local legislative bodies are negotiating these issues and the extensions allows them to continue their work and determine a plan for repayment. •  Eﬀective July 1, 2016.

Course Access Program Act Public Chapter 889 by Kane/Gresham

•  Creates the Course Access Program Act •  LEAs can partner for online courses, allowing students to participate in classes offered in other districts. •  LEAs must choose to participate. •  Courses must be offered by another LEA. •  No private organizations can offer courses. •  Effective immediately.

Priority Schools List Public Chapter 916 by Tate/Akbari

•  Deals with the priority school list issued by the DOE. •  All schools must be listed in order of success rate – highest to lowest. •  All schools in each county must be listed in order of success rate – highest to lowest. •  Will help determine if ASD chooses the highest performing priority schools. •  Eﬀective immediately.

Alternative Grading Scales Public Chapter 957 by Goins/Southerland

•  Establishes the quality points that will be awarded in alternative grading scales for certain types of courses. –  One-half point: honors or national industry certification –  Three-fourths point: statewide dual credit –  On point: AP, Cambridge, IB, dual enrollment

•  Eﬀective July 1, 2016.

Nonprofit Organizations Public Chapter 961by Akbari/Tate

•  Allows the SBOE to promulgate rules that will allow a 501(c)(3) nonprofit corporation to assist LEAs with improving reading, math, science, and social studies. •  Volunteers must have background checks. •  LEAs must approve the organization. •  Eﬀective January 1, 2017.

Standards vs. Curriculum Public Chapter 999 by Butt/Gresham

•  Amends several sections with Tennessee State Code in order to distinguish the diﬀerence between standards and curriculum. •  This should help districts and the state since the two terms were being used interchangeably. •  Eﬀective immediately.

BEP Improvements Public Chapter 1020 by McCormick/Norris

•  BEP Instructional Salary Component increase to $44,430. •  Twelve months of medical insurance. •  Updates Special Education Funding formula. •  Removes the early graduation penalty. •  Increases technology component of BEP to $40 million. •  Reduces CDF (Cost Diﬀerential Factor). •  Eﬀective immediately.

Weapons on School Property Public Chapter 1049 by Byrd/Hensley •  Allows LEAs in Wayne and Pickett counties to authorize qualified individuals to carry firearms. •  As written, qualified means possessing a valid handgun carry permit. •  Must receive POST (Peace Oﬃcer Standards and Training Commission) approved training •  The LEA can require additional training, but the responsibility for that training is placed on the individual. •  Can only authorized one employee for every 100 students. •  District must notify law enforcement. •  Eﬀective July 1, 2016.

Dyslexia Screening Public Chapter 1058 by Pitts/Gresham •  DOE will develop universal dyslexia screening procedures which must be implemented by the LEAs. •  Schools must provide intervention through RTI2. •  DOE will provide professional development resources to educators. •  Creates a dyslexia advisory council. •  Eﬀective July 1, 2016.

County Budget Procedures Public Chapter 1080 by Keisling/Bailey •  Establishes a timeline for LEA budget submission, but allows the LEA and local funding body to develop their own. •  LEA gets amount equal to MOE and local match if a budget is not adopted by Aug. 31st of each year. •  If this occurs three consecutive years, LEA receives an increase equal to 3% of the required local funding. •  All budget amendments must be acted on by the local funding body within 40 days of receipt. •  Awaiting Public Chapter. •  Multiple eﬀective dates depending on the section.

Questions?

Thank You!

2016 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

529

School Transportation

As enacted, extends the allowable number of years for a Type A school bus to be in service to 15 years.

HB0238

As enacted, authorizes the Metropolitan Nashville local board of education to conduct meetings by electronic means under the same circumstances as other local boards of education.

SB1470

As enacted, removes a teacher's duty to perform fire Teachers, Principals and School drills, intruder drills, or any other safety or emergency Personnel drills.

SB1685

532

575

Local Education Agencies

Schools, Home

As enacted, adds the Tennessee alliance of church related schools to the list of organizations membership in which makes a school a church related school with which homeschools may affiliate.

HB0782

Education

As enacted, allows a student attending a Tennessee school for the first time rather than attending a Tennessee public school for the first time to be eligible for an individualized education account, if the student also meets other requirements; allows the department of education to remit funds to individualized education accounts at least quarterly rather than quarterly.

SB1735

Education

As enacted, specifies that excluded expenditures include nonrecurring funds for priority schools in regard to provisions governing local government appropriating funds for education for nonrecurring expenditures and such funds being excluded from the maintenance of local funding requirement and from any apportionment requirement for local transportation funding.

SB1858

623

Education

As enacted, requires the department of education to establish a model policy on suicide prevention; requires an LEA to adopt its own policy or the model policy on suicide prevention.

SB1992

627

Students

578

620

622

644

660

As enacted, removes certain requirements governing remand to alternative schools and expulsion for students convicted of violent felonies.

SB2256

Education, Dept. of

As enacted, requires the department to post on the department's web site all legislation enacted by the general assembly related to the rights of students and parents or legal guardians; requires the LEA to provide a link to the list on the web site of the LEA.

HB2010

Education

As enacted, requires each local school board to adopt a policy on the inclusion of religion in curriculum and instructional materials; requires each LEA to create a syllabus to be made public for grades six through 12 on social studies, science, math, and English language arts courses; requires the state board to initiate a revision process for the social studies standards adopted in 2013; requires teacher training institutions to instruct candidates regarding constitutionally permissible instruction of religious content.

HB1905

2016 Public Acts Relative to K-12 Education Chapter Number

667

Subject

Abstract

Bill Number

Education, Curriculum

As enacted, requires the state board of education, beginning with the 2016-2017 school year, to approve appropriate computer science courses such as software engineering and computer programming that every candidate for a full high school diploma may enroll in and complete to satisfy the elective focus requirement for graduation.

HB1755

HB2148

669

Students

As enacted, requires LEAs to provide students with certain periods of physical activity depending on grade level; deletes an obsolete reporting requirement; requires the office of coordinated school health in the department of education to provide an annual report regarding this act.

673

Education, State Board of

As enacted, provides for an annual authorizer fee to be paid to the state board if the state board is the chartering authority of a charter school.

SB1731

SB2088

677

Education

As enacted, requires schools having automatic external defibrillators (AEDs) to have annual training in the use of AEDs and an annual CPR/AED drill for school personnel; requires students in junior high or senior high to receive training in the use of AEDs during CPR instruction and, if the school has an AED, participate in a CPR/AED drill; exempts schools operated by or under contract with the department of children's services.

680

Education

As enacted, requires the department of education to develop a school grading system that assigns A, B, C, D, and F letter grades to schools.

SB0300

684

Education

As enacted, revises the investigative and reporting responsibilities of the office of research and education accountability in the office of the comptroller and makes other changes concerning the collection and reporting of data related to education.

SB1638

703

Education

As enacted, makes certain changes to the requirements for voluntary pre-k programs.

SB1899

As enacted, requires the department to provide an annual report to the education committee of the senate and the education instruction and programs committee of the house of representatives, regarding the physical education programs and activity for each LEA.

SB1967

As enacted, requires referees or officiates of interscholastic athletic events to submit to a criminal background investigation and provide a fingerprint sample; exempts the referees and officiates from the criminal background investigation and requirement to provide a fingerprint sample if they have undergone a satisfactory background check as a condition of registration for work as an official for interscholastic athletic contests.

SB2118

706

710

712

Education, Dept. of

Education

Teachers, Principals and School As enacted, revises provisions governing the evaluation Personnel of teachers and principals.

SB2508

2016 Public Acts Relative to K-12 Education Chapter Number

722

732

733

752

Subject

Abstract

Bill Number

Public Records

As enacted, revises requirements for protecting personally identifying information in records held by governmental entities; requires the office of open records counsel to develop a model public records policy for governmental entities; makes other related changes to public records laws.

HB2082

Schools, Home

As enacted, requires schools to provide notice on their web sites of the date of the school's administration of the AP and PSAT/NMSQT examinations, the availability of such examinations, and any financial assistance for low income students; requires that home school students be permitted to take the AP and PSAT/NMSQT examinations at any public school offering such examinations.

HB2190

As enacted, opens membership of the directors of schools association to include affiliate membership to Teachers, Principals and School principals and assistant principals and to system-wide supervisors; requires that membership fees be set in Personnel bylaws instead of constitution; revises other related provisions.

Lottery, Scholarships and Programs

HB2261

As enacted, encourages public school teachers to be Promise scholarship mentors by crediting them with one day of in-service for volunteering as mentors; encourages retired teachers to be Promise scholarship mentors by granting them one year of eligibility for the state employee discount program for volunteering as mentors.

HB1642

HB1722

754

Education

As enacted, requires that the display of the American flag on school property and at school events conform to the requirements of federal law; requires a local board of education to permit display of the American flag, if the display conforms to the requirements of federal law.

757

Students

As enacted, enacts the "Student Online Personal Protection Act".

HB1931

Education, Dept. of

As enacted, requires the state board of education and the department to support and encourage LEAs in the creation of communities of schools; authorizes LEAs and schools to form community consortiums with a variety of community partners to establish communities of schools; enacts other provisions relative to community schools.

SB2172

Local Education Agencies

As enacted, makes various revisions to an LEA's policies on harassment, intimidation, bullying, or cyber-bullying; requires that an investigation be initiated within 48 hours and that an appropriate intervention be initiated within 20 calendar days of receipt of the report.

SB2002

770

783

802

Education

807

Education

As enacted, requires every elementary and secondary school to post the toll-free telephone number operated by the department of children's services to receive reports of child abuse or neglect in a clearly visible location in a public area that is readily accessible to students. As enacted, requires the principal of a school to allow a patriotic society the opportunity to speak with students during school hours.

SB1862

SB2098

2016 Public Acts Relative to K-12 Education Chapter Number

Subject

831

Education

844

Education

882

Education

885

Taxes, Alcoholic Beverages

889

Education

916

Education, Dept. of

Abstract As enacted, encourages public high school students to participate voluntarily in at least 10 hours of community service each semester; requires the student's public high school to recognize the student's achievement at graduation in a suitable manner in certain circumstances. As enacted, enacts the "Tennessee Student Assessment Transparency Act". As enacted, authorizes local boards of education to admit pupils from outside their respective local school systems at any time without the approval of the previous LEA; adds that in cases where an LEA has created a regional school with a specific focus on STEM, local BEP school funds will also follow the student into the LEA to which the student is transferring and no tuition may be charged by the receiving LEA; revises other related provisions.

Bill Number

SB2165

HB1537

HB1638

As enacted, extends certain alternative distribution provisions concerning liquor-by-the-drink tax proceeds to local governments.

HB1691

As enacted, enacts the "Course Access Program Act."

HB1879

As enacted, requires the department of education, when publishing the list of priority schools, to list all schools in the state in order by success rate from the highest to the lowest; and list all schools in each county and each LEA in order by success rate from the highest to the lowest.

SB1144

As enacted, specifies that educational institutions exempt from registering with the division of charitable solicitations, includes institutions that are approved by the local board of education, the ASD, or the state board of education; extends certain renewal of registration filings for an additional 60 days.

SB1566

As enacted, revises various provisions governing Tennessee STEP UP scholarships.

SB1584

As enacted, authorizes local governments to enter cooperative purchasing agreements with federal agencies; excludes certain purchases.

SB1615

Lottery, Scholarships and Programs

As enacted, revises eligibility requirements for home school students and students who graduate from an ineligible high school to receive the general assembly merit scholarship.

SB1695

957

Local Education Agencies

As enacted, requires all LEAs using the uniform grading system for lottery scholarship purposes, and another grading system based on quality points for other purposes, to award additional quality points for honors and other advanced courses uniformly.

SB1831

961

Education

As introduced, authorizes the commissioner of education to promulgate rules to allow a 501(c)(3) nonprofit corporation to enter a school to teach kindergarten through third-grade students various subjects.

SB1864

928

Charitable Solicitations

930

Scholarships and Financial Aid

935

Purchasing and Procurement

943

2016 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

971

Lottery, Scholarships and Programs

As introduced, permits a student with a documented learning disability who is unable to take 12 semester hours as required for the Tennessee Promise scholarship to be eligible for the scholarship.

SB2039

999

Education, Dept. of

As introduced, requires the department to notify electronically each LEA when the office of research and education accountability publishes a report pertaining to pre-K-12 education in order that the LEAs may disseminate the report to licensed personnel.

SB2499

1020

Basic Education Program (BEP)

As introduced, eliminates an obsolete provision of Tennessee Code Annotated concerning the BEP.

HB2574

1036

School Transportation

1049

Education

1058

Education

1080

County Government

As introduced, broadens the scope of the offense regarding a school bus driver using certain electronic devices while operating a bus with a child on board and increases the penalty for the offense. As introduced, permits each LEA and each school board for private schools to determine whether someone with a Tennessee-issued handgun carry permit may carry a handgun while on the property of the public or private school and while traveling on school functions with students. As introduced, requires an LEA to screen K-2 students for dyslexia with a program provided by the department of education; creates the dyslexia advisory council. As amended, creates a timeline for county LEA budget submissions to the county legislative body and creates a continuing budget provision for an LEA budget.

SB1596

SB2249

SB2635

SB2128

2016 Education Legislation Explained Public Chapter 623 – This new law requires all employees of the school district to attend the annual inservice training in suicide prevention. Additionally, each district must adopt a policy on suicide prevention that contains procedures relating to suicide prevention, intervention, and postvention. Finally, the law includes a provision that removes any cause of action resulting from the implementation of the district’s policy, and does not create a specific duty of care. The law takes effect July 1, 2016.

Public Chapter 660 – This new law requires districts to adopt a policy regarding the appropriate inclusion of religion in local curriculum and instructional materials. Additionally, the syllabus for grades 6-12 social studies, science, math and English language arts must be publicly available. The syllabus for each grade and subject must include a course calendar, major assignments, and procedures for access to instructional materials. The law takes effect immediately.

Public Chapter 669 – This new law changes the requirements for physical activity in schools. Currently, all students are required to have 90 minutes of physical activity per week. Public Chapter 669 changes that requirement for grades K-6. Student in grades K-1 must receive at least three (3) fifteen (15) minute periods of non-structured physical activity per day. Student in grades 2-6 must receive a minimum of two (2) twenty (20) minute periods of non-structured physical activity at least four days per week. LEAs are prohibited from counting the time walking to and from class. This law takes effect July 1, 2016.

Public Chapter 680 – This new law creates a school grading system that annually assigns a grade of A, B, C, D, or F to schools based on criteria developed by the department of education. The criteria must include TCAP results, TVAAS data, and any other indicator the department of education uses to determine student achievement and school performance. The state board of education is required to review the system prior to implementation. This law takes effect immediately, but grading will not begin until the 2017-2018 school year.

Public Chapter 703 – This new law requires Pre-K programs to meet the standards for kindergarten readiness. Pre-K programs must also meet the criteria for a “highly qualified pre-kindergarten program” as identified by the department of education. Pre-K programs will coordinate with elementary schools within the LEA and deliver professional development to their teachers. Finally, LEAs that have pre-K programs must evaluate their pre-K teachers using the pre-k/kindergarten growth portfolio model approved by the state board of education. This law takes effect immediately.

Public Chapter 712 – This new law makes additional changes to teacher evaluations, giving teachers the option to include or not include results from the 2015-16 TNReady and TCAP tests within the student growth component of their evaluation, depending on which scenario benefits them the most. Teachers will have three options for how their evaluation will be calculated: (1) Teachers can use the current framework where the assessments will only count for 10% of an evaluation; (2) Teachers can use the TNReady scores for the full 35%; or (3) Teachers can exclude TNReady data completely. Teachers in non-tested grades and subjects will also have flexibility to include or not include TNReady scores. This law takes effect immediately.

Public Chapter 722 – This new law makes changes to the Open Records law. First, it requires districts to identify a “public records request coordinator” and a “records custodian” in board policy. It also requires districts to adopt a public records policy that details the following: the process for making requests or receiving copies; the process for responding to requests; and a statement of fees charged for copies and billing and payment procedures. This law takes effect immediately.

Public Chapter 783 – This new law makes changes to the investigation requirements for harassment, intimidation, bullying, or cyber-bullying. Once a report is received, the principal or his/her designee must initiate an investigation within forty-eight (48) hours unless the need for additional time is appropriately documented. Appropriate intervention must be initiated within twenty (20) calendar days from the receipt of the report unless the need for more time is appropriately documented. Parents must be immediately informed if their student is involved in an act of harassment, intimidation, bullying, or cyber-bullying. Finally, the district’s policy prohibiting harassment, intimidation, bullying, or cyberbullying must be reviewed at least once every three (3) years and any changes must be submitted to the commissioner of education. This law takes effect July 1, 2016.

Public Chapter 844 – This law provides students, parents and teachers with testing transparency, and gives them access to the resources they need to improve student achievement. Beginning with the 201617 school year, the department of education will provide LEAs with access to student TCAP and end-ofcourse assessment items and the students’ answers. The LEAs can then release the information to parents and teachers so long as it does not hinder future administration of the exams. Additionally, the new law will remove the required tests for grades eight and ten It would also give students the opportunity to retake the ACT one additional time prior to graduation if funds exist. This law takes effect July 1, 2016.

Public Chapter 1020 – This law adds $220 million in recurring funds to the Basic Education Program (BEP). This law included many of the recommendations of the BEP Review Committee. There will be an additional $100 million for teacher salaries, funding for the 12th month of insurance, an additional $20 million for technology funding, and removal of the early graduation district funding penalty. There will also be an additional $50 million to address enrollment growth and inflationary costs. This law takes effect immediately. Public Chapter 1080 – This new law establishes a timeline for budget submissions for county legislative bodies and county LEAs, but also allows an alternative schedule to be established by the county legislative body with the concurrence of the county LEA. If a county LEAs budget is not adopted by the county legislative body by August 31st of any year, then the county LEA’s budget will be equal to the minimum budget required to comply with the local match and maintenance of effort provisions of the BEP. However, if the county LEA’s budget is established by operation of law for three (3) consecutive years, then the local legislative body is required to provide an increase equal to three percent (3%) of the required local funding. Additionally, any budget amendment submitted by the county LEA must be acted upon by the county legislative body within forty (40) days of receipt. This bill only impacts county governments and county LEAs because budgeting procedures for municipal school districts are established by private acts, city charters, or the municipal legislative bodies. This law is waiting on the Governor’s signature and assignment of a public chapter. Some provisions of this law take effect immediately while others take effect next fiscal year.

LEGAL REALITIES OF TRANSGENER STUDENTS SAMUEL L. JACKSON ATTORNEY, LEWIS, THOMASON, KING, KRIEG AND WALDROP P.C.

6/8/16

Legal Realities of Transgender Students: What’s Happening Around the Country Samuel L. Jackson June 24, 2016

WWW.LEWISTHOMASON.COM KNOXVILLE | MEMPHIS | NASHVILLE

Overview •

President’s Position o

•

Court holdings o

•

Guidance from the Departments of Education/Justice

G.G. v. Gloucester County Sch. Bd.

State Responses o

North Carolina

Multistate Lawsuit

Best Practices

What are DOE and DOJ saying? Dear Colleague Letter, May 13, 2016 •  Requiring transgender students to use same-sex facilities violates Title IX. o  “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” •  Once “a student or the student’s parent or guardian . . . notifies the school administration that the student will assert a gender identity than differs from previous records, or representations, the school will begin treating the student consist with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”

6/8/16

What are DOE and DOJ saying? Dear Colleague Letter, May 13, 2016

•  A school’s obligation under Title IX to ensure nondiscrimination requires schools to provide transgender students equal access “even in circumstances in which other students, parents, or community members raise objections or concerns.”

What are DOE and DOJ saying? Dear Colleague Letter, May 13, 2016 •  Schools are obligated to: o  Treat students consistent with their gender identity even if their school records or identification documents indicate a different sex; o  Allow students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and o  Protect students’ privacy related to their transgender status under Title IX and the Family Educational Rights and Privacy Act.

What is DOE saying? Letter to Township High School District 211, November 2, 2015 •  OCR found that an Illinois school district’s requiring a transgender female to use private changing and showering facilities in lieu of having complete access to the girls' facilities was a violation of Title IX. •  Student identified as a female, but was born male. Prior to student’s transition to high school, parties communicated extensively about issues relating to the transition, including locker room access. •  District largely honored student’s requests to be treated as female. She participated on the girls’ soccer team, was referred to by female name and pronoun, and was given unlimited access to all girls’ restrooms, but District denied her request to change and shower privately in the girls’ locker room, citing privacy concerns of all students. •  Instead, District offered student changing facilities in a private restroom for Physical Education class, which included a mandatory swim unit, and athletics.

6/8/16

What is DOE saying? Letter to Township High School District 211, November 2, 2015

•  OCR found that District violated Title IX by mandating that student use separate restroom facilities that were not comparable to those provided to other students. •  District proffered a legitimate nondiscriminatory justification for the denial of access as being “based on needs of all students” and raised two specific privacy concerns 1) exposing female students to being observed in state of undress by a biological male and 2) vice versa. à OCR summarily concluded that the District’s concerns were “unavailing.” •  OCR entered into a resolution agreement with the district on December 3, 2015.

What are the Courts holding? G.G. v. Gloucester County Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015) Facts: •  By freshman year, Plaintiff informed his parents that he was a transgender male and began seeing a psychologist, who diagnosed him with gender dysphoria. •  Prior to start of 2014-‐2015 school year, Plaintiff noti?ied school of Plaintiff’s transgender status and that he had legally changed his name. •  Upon returning to school, Plaintiff agreed to use a separate bathroom in nurse’s of?ice but soon found that doing so was stigmatizing and was granted permission to use the male bathrooms.

G.G. v. Gloucester County Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015) Facts: •  After community members voiced their disapproval, the School Board held a meeting and eventually adopted a resolution that provided: •  It shall be the practice of the District to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility. •  Plaintiff refused to use the three unisex single-‐stall restrooms installed by the school for fear of isolation and sued the school board for violation of the Equal Protection Clause and Title IX.

6/8/16

G.G. v. Gloucester County Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015) •  G.G. sought injunction allowing him, a natal female, to resume using the boys’ restroom until there is a final judgment on merits. •  Court found that G.G had not submitted enough evidence to establish that the burden of hardships weighed in his favor and thus failed to overcome the “uphill battle” necessary to obtain a preliminary injunction. •  Court must consider G.G.’ claims of stigma and distress against privacy interests of other students protected by separate restrooms. In protecting the privacy of other students, Board is protecting a constitutional right. •  “The School Board seeks to protect an interest in bodily privacy that the Fourth Circuit has recognized as a constitutional right while G.G. seeks to overturn a long tradition of segregating bathrooms based on biological differences between the sexes. “

G.G. v. Gloucester County Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016) Holding •  On appeal, the Court ruling 2-1 reversed the district court’s decision to grant the school board’s motion to dismiss, vacated its denial of G.G.’s motion for a preliminary injunction, and remanded the case. Title IX Claim •  Court found that discrimination on the basis of gender identity is discrimination on the basis of sex and “Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.”

G.G. v. Gloucester County Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016)

•  Court further concluded that the DOE’s interpretation of its own regulation was entitled to deference and should be accorded controlling weight in the case. •  It acknowledged that a subsequent administration may choose to implement a different policy or Congress may revise Title IX to explicitly prohibit or authorize requirements for treating transgender students according to their gender identity.

6/8/16

G.G. v. Gloucester County Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016) Dissent •  “This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes . . . .” •  “To accomplish its goal, the majority relies entirely on a 2015 letter sent by the Department of Education’s Office for Civil Rights to G.G.” and reversed the district court’s ruling “without any supporting case law.”

G.G. v. Gloucester County Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016) Implications •  Court essentially found that interpretations of federal discrimination policies should be left to politicians, relying on the DOE in this case. •  Transgender students now have precedent on their side when requesting access to bathrooms and locker rooms.

G.G. v. Gloucester County Sch. Bd., 2016 U.S. App. LEXIS 7026 (4th Cir. Va. Apr. 19, 2016) Update •  On June 1, 2016, the Fourth Circuit denied the school board’s request to rehear the case before a full panel of judges. •  Judge Niemeyer dissented again, stating that he believes the case deserves to be reheard but declined to request a poll to see whether a majority of his colleagues wanted to move forward because he wants the case to quickly reach the Supreme Court. •  On June 7, 2016, the school board asked the Fourth Circuit to stay its ruling while the Supreme Court decides whether to take the case.

6/8/16

How are States Responding? North Carolina •  On March 22, 2016, Governor Pat McCrory signed House Bill 2, the Public Facilities Privacy and Security Act, which prohibits individuals from using public bathrooms that do not correspond to their biological sex and restricts cities from passing broader nondiscrimination laws. •  On May 9, 2016, North Carolina sued the federal government, accusing it of “baseless and blatant overreach” and arguing that the DOJ’s position is a “radical reinterpretation of Title VII of the Civil Rights Act.” •  Hours later, DOJ sued North Carolina for discrimination and violation of civil rights, claiming that the law “stigmatizes and singles out transgender employees, results in their isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.”

How are States Responding? Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Texas, Utah, West Virginia, Wisconsin, Texas, Governor of Maine and Arizona DOE •  On May 23, 2016, eleven states and state officials filed a lawsuit against the Obama administration challenging the May 13 federal guidance directing schools to allow transgender students to use restrooms and other facilities that correspond with their gender identities and threatening to pull federal funding if schools do not comply. •  “Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights.”

How are States Responding? Alabama, Georgia, Louisiana, Oklahoma, Tennessee, Texas, Utah, West Virginia, Wisconsin, Texas, Governor of Maine and Arizona DOE •  Lawsuit alleges in part that: o  Defendants have failed to follow the proper procedure for promulgating new rules, regulations, guidance and interpretations; o  The new rules, regulations, guidance and interpretations set forth by Defendants exceed their power, as they “functionally exercise lawmaking power reserved only to Congress” and expand federal court jurisdiction; o  The new rules, regulations, guidance and interpretations violate the Tenth Amendment by encroaching on powers served to the States; and o  The new rules, regulations, guidance and interpretations are unconstitutionally coercive.

6/8/16

Best Practices •

Stay Updated. ü  Set alerts for cases on appeal, watch for new decisions, and stay apprised of status of current bills.

•  Don’t be Dismissive. ü  In nearly all of the decisions we reviewed, District was understanding and accommodating to unique needs of transgender students. •  Case-by-Case Basis. ü  Keep up-to-date case law as guidance and confer with your attorney first as related law is a moving target.

QUESTIONS? Samuel Jackson sjackson@lewisthomason.com

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 1 of 32 PageID 1

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION STATE OF TEXAS; HARROLD INDEPENDENT SCHOOL DISTRICT (TX); STATE OF ALABAMA; STATE OF WISCONSIN; STATE OF WEST VIRGINIA; STATE OF TENNESSEE; ARIZONA DEPARTMENT OF EDUCATION; HEBER-OVERGAARD UNIFIED SCHOOL DISTRICT (AZ); PAUL LEPAGE, GOVERNOR OF THE STATE OF MAINE; STATE OF OKLAHOMA; STATE OF LOUISIANA; STATE OF UTAH; and STATE OF GEORGIA

§ § § § § § § § § § § § § § § § § § Plaintiffs, § § v. § § UNITED STATES OF AMERICA; § UNITED STATES DEPARTMENT § OF EDUCATION; JOHN B. KING, § JR., in his Official Capacity as United § States Secretary of Education; UNITED § STATES DEPARTMENT OF JUSTICE; § LORETTA E. LYNCH, in her Official § Capacity as Attorney General of the § United States; VANITA GUPTA, in her § Official Capacity as Principal Deputy § Assistant Attorney General; § UNITED STATES EQUAL § EMPLOYMENT OPPORTUNITY § COMMISSION; JENNY R. YANG, in § her Official Capacity as the Chair of § the United States Equal Employment § Opportunity Commission; UNITED § STATES DEPARTMENT OF LABOR; §

CIVIL ACTION NO. ______________

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

THOMAS E. PEREZ, in his Official Capacity as United States Secretary of Labor; DAVID MICHAELS, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Health Administration, Defendants.

Page 2 of 32 PageID 2

§ § § § § § § §

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The State of Texas, the Harrold Independent School District (Texas), the State of Alabama, the State of Wisconsin, the State of West Virginia, the State of Tennessee, the Arizona Department of Education, the Haber-Overgaard Unified School District (AZ), Paul LePage, in his official capacity as Governor of Maine, the State of Oklahoma, the State of Louisiana, the State of Utah, and the State of Georgia (collectively, “Plaintiffs”) seek declaratory relief against the United States of America, the United States Department of Education, John B. King, Jr., in his Official Capacity as United States Secretary of Education, the United States Department of Justice, Loretta E. Lynch, in her Official Capacity as Attorney General of the United States, Vanita Gupta in her Official Capacity as Principal Deputy Assistant Attorney General, the United States Equal Employment Opportunity Commission, Jenny R. Yang, in her Official Capacity as the Chair of the United States Equal Employment Opportunity Commission, United States Department of Labor, Thomas E. Perez, in his Official Capacity as United States Secretary of Labor; and David Michaels, in his Official Capacity as the Assistant Secretary of Labor for Occupational Safety and Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 2

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 3 of 32 PageID 3

Health Administration. Plaintiffs include a diverse coalition of States, top State officials, and local school districts, spanning from the Gulf Coast to the Great Lakes, and from the Grand Canyon to the Grand Isle, that stand behind the singular principle that the solemn duty of the Federal Executive is to enforce the law of the land, and not rewrite it by administrative fiat. Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation. I. PARTIES 1.

Plaintiff State of Texas is subject to Title VII as the employer of

hundreds of thousands through its constituent agencies. The State of Texas also oversees and controls several agencies that receive federal funding subject to Title IX. For example, the School for the Blind and Visually Impaired (“SBVI”) and School for the Deaf (“SD”) are statutorily created, independent state agencies. Tex. Educ. Code § 30.001 et seq. Both are governed by nine-member boards, appointed by the governor and confirmed by the senate, and both have superintendents appointed by the boards and “carry out the functions and purposes of [each] school according to any general policy the board[s] prescribe[].” Id. §§ 30.023(e) (SBVI); 30.053(e) (SD). Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 3

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 4 of 32 PageID 4

Currently, SBVI has a total budget of $24,522,116, of which $4,789,974 is identified as federal funds, and SD has a total budget of $28,699,653, of which $1,957,075 is identified as federal funds. As another example, the Texas Juvenile Justice Department (TJJD) is a state agency subject to Title VII and Title IX. Responsible for overseeing youth correction facilities in the State of Texas, TJJD’s current budget is $314,856,698, which includes $9,594,137 in federal funding. 2.

Plaintiff Harrold Independent School District (“Harrold ISD”) is a state

independent public school district based in Harrold, Texas. 3.

The Plaintiff States of Alabama, Wisconsin, West Virginia, Tennessee,

Oklahoma, Louisiana, Utah, Georgia are similarly situated to the State of Texas in that one or more of the following circumstances is present: (1) they are employers covered by Title VII, (2) their agencies and departments are subject to Title IX, (3) their agencies and departments receive other federal grant funding that requires, as a condition of the grant, compliance with the Title IX provisions at issue in this lawsuit, or (4) they are suing on behalf of public educational institutions, departments, or agencies in their State are subject to Title IX. 4.

Plaintiff Arizona Department of Education is the state agency

responsible for “[t]he general conduct and supervision of the public school system” in Arizona. ARIZ. CONST. art. XI, § 2. 5.

Plaintiff Heber-Overgaard Unified School District is a public school

district with its principal office located in Heber, Arizona. 6.

Plaintiff Paul LePage is the Governor of Maine and Chief Executor of

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 4

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 5 of 32 PageID 5

the State of Maine Constitution and the laws enacted by the Maine State Legislature. 7.

Defendant United States Department of Education (“DOE”) is an

executive agency of the United States and responsible for the administration and enforcement of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”). 8.

Defendant John B. King, Jr., is the United States Secretary of

Education. In this capacity, he is responsible for the operation and management of the DOE. He is sued in his official capacity. 9.

Defendant United States Department of Justice (“DOJ”) is an executive

agency of the United States and responsible for the enforcement of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. DOJ has the authority to bring enforcement actions to enforce Title IX. Exec. Order No. 12250, 28 C.F.R. Part 41 app. A (1980). 10.

Defendant Loretta A. Lynch is the Attorney General of the United States

and head of DOJ. She is sued in her official capacity. 11.

Defendant Vanita Gupta is Principal Deputy Assistant Attorney

General at DOJ and acting head of the Civil Rights Division of DOJ. She is assigned the responsibility to bring enforcement actions under Titles VII and IX. 28 C.F.R. § 42.412. She is sued in her official capacity. 12.

Defendant Equal Employment Opportunity Commission (“EEOC”) is a

federal agency that administers, interprets, and enforces certain laws, including Title VII. EEOC is, among other things, responsible for investigating employment and hiring discrimination complaints. Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 5

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

13.

Page 6 of 32 PageID 6

Defendant Jenny R. Yang is the Chair of the EEOC. In this capacity, she

is responsible for the administration and implementation of policy within the EEOC, including the investigating of employment and hiring discrimination complaints. She is sued in her official capacity. 14.

Defendant United States Department of Labor (“DOL”) is the federal

agency responsible for supervising the formulation, issuance, and enforcement of rules, regulations, policies, and forms by the Occupational Safety and Health Administration (“OSHA”). 15.

Defendant Thomas E. Perez is the United States Secretary of Labor. He

is authorized to issue, amend, and rescind the rules, regulations, policies, and forms of OSHA. He is sued in his official capacity. 16.

Defendant David Michaels is the Assistant Secretary of Labor for

OSHA. In this capacity, he is responsible for assuring safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. He is sued in his official capacity. II. JURISDICTION AND VENUE 17.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331

because this suit concerns the ultra vires revision of the term “sex” under multiple provisions of the United States Code. This Court also has jurisdiction to compel an officer of the United States or any federal agency to perform his or her duty pursuant to 28 U.S.C. § 1361. Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 6

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

18.

Page 7 of 32 PageID 7

Venue is proper in the Northern District of Texas pursuant to 28 U.S.C.

§ 1391 because the United States, several of its agencies, and several of its officers in their official capacity are Defendants; a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District; and Plaintiff Harrold ISD (TX) is both an employer subject to Title VII, and a recipient of federal monies subject to Title IX restrictions in Harrold, Texas. 19.

The Court is authorized to award the requested declaratory relief under

the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201–2202. The Court is authorized to order corrective action under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 611. III. FACTUAL BACKGROUND A. Congressional History. 20.

In 1964, Congress enacted Title VII of the Civil Rights Act, making it

illegal for employers to invidiously discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. 21.

Eight years later, Congress passed Title IX of the Education

Amendments of 1972, proscribing invidious discrimination on the basis of “sex” in federally funded education programs and activities. 20 U.S.C. § 1681(a). Title IX permits institutions to differentiate intimate facilities by sex. 20 U.S.C. § 1686 (“Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 7

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 8 of 32 PageID 8

sexes.”). Section 1686 was added to address concerns that Title IX would force a college to allow women in dormitories designated for only men, and vice versa. When Senator Birch Bayh first introduced the legislation, Senator Dominick asked about the scope of the law: Mr. DOMINICK. The provisions on page 1, under section 601, refer to the fact that no one shall be denied the benefits of any program or activity conducted, et cetera. The words “any program or activity,” in what way is the Senator thinking here? Is he thinking in terms of dormitory facilities, is he thinking in terms of athletic facilities or equipment, or in what terms are we dealing here? Or are we dealing with just educational requirements? I think it is important, for example, because we have institutions of learning which, because of circumstances such as I have pointed out, may feel they do not have dormitory facilities which are adequate, or they may feel, as some institutions are already saying, that you cannot segregate dormitories anyway. But suppose they want to [sexually] segregate the dormitories; can they do it? Mr. BAYH. The rulemaking powers referred to earlier, I think, give the Secretary discretion to take care of this particular policy problem. I do not read this as requiring integration of dormitories between the sexes, nor do I feel it mandates the [sexual] desegregation of football fields. What we are trying to do is provide equal access for women and men students to the educational process and the extracurricular activities in a school, where there is not a unique facet such as football involved. We are not requiring that intercollegiate football be desegregated, nor that the men’s locker room be [sexually] desegregated. 117 Cong. Rec. 30407 (1971) (emphasis added). 22.

The following year, when Title IX was passed, Senator Bayh again

reiterated that this was not meant to force men and women to share intimate facilities where their privacy rights would be compromised: Under this amendment, each Federal agency which extends Federal financial assistance is empowered to issue implementing rules and Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 8

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 9 of 32 PageID 9

regulations effective after approval of the President. These regulations would allow enforcing agencies to permit differential treatment by sex only—very unusual cases where such treatment is absolutely necessary to the success of the program—such as in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved. 118 Cong. Rec. 5807 (1972) (emphasis added). 23.

The same concerns were raised when Title IX was debated in the House.

Representative Thompson, concerned about men and women using the same facilities, offered an amendment: I have been disturbed however, about the statements that if there is to be no discrimination based on sex then there can be no separate living facilities for the different sexes. I have talked with the gentlewoman from Oregon (Mrs. Green) and discussed with the gentlewoman an amendment which she says she would accept. The amendment simply would state that nothing contained herein shall preclude any educational institution from maintaining separate living facilities because of sex. So, with that understanding I feel that the amendment [exempting undergraduate programs from Title IX] now under consideration should be opposed and I will offer the “living quarters” amendment at the proper time. 117 Cong. Rec. 39260 (1971) (emphasis added). This amendment was eventually introduced and passed. 117 Cong. Rec. 39263 (1971). B. Aftermath of Title IX. 24.

Following the enactment of Title IX, there was broad support behind the

policy of maintaining separate intimate facilities for female and male students. The initial rules that the federal government promulgated to implement Title IX permitted schools receiving federal funds to separate restrooms, locker rooms, and shower facilities on the basis of sex. 34 C.F.R. § 106.33. Furthermore, legal scholars defended separate sex intimate facilities as necessary to preserve individual privacy Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 9

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 10 of 32 PageID 10

rights. In a 1975 Washington Post editorial, then Columbia Law School Professor Ruth Bader Ginsburg wrote that “[s]eparate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” Ginsburg, The Fear of the Equal Rights Amendment, WASH. POST, Apr. 7, 1975, at A21. And in a 1977 report, the United States Commission on Civil Rights concluded the “the personal privacy principle permits maintenance of separate sleeping and bathroom facilities” for women and men. United States Commission on Civil Rights, SEX BIAS IN THE U.S. CODE 216 (1977). 25.

Meanwhile, Congress repeatedly construed its prohibitions against

invidious “sex” discrimination narrowly. In 1974, Representatives Bella Abzug and Edward Koch proposed to amend the Civil Rights Act to add the category of “sexual orientation.” H.R. 14752, 93rd Cong. (1974). Congress considered other similar bills during the 1970s. See H.R. 166, 94th Cong. (1975); H.R. 2074, 96th Cong. (1979); S. 2081, 96th Cong. (1979). In 1994, lawmakers introduced the Employment NonDiscrimination Act (“ENDA”), which, like Abzug and Koch’s earlier effort, was premised on the understanding that Title VII’s protections against invidious “sex” discrimination related only to one’s biological sex as male or female. H.R. 4636, 103rd Cong. (1994). In 2007, 2009, and 2011, lawmakers proposed a broader version of EDNA to codify the definition of “sex” that Defendants now embrace. H.R. 3685, 110th Cong. (2007); H.R. 2981, 111th Cong. (2009); S. 811, 112th Cong. (2011). In addition, in 2013 and 2015, proposals were made to add to Title IX the category of “gender identity.” H.R. 1652, 113th Cong. (2013); S.439, 114th Cong. (2015). Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 10

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 11 of 32 PageID 11

Notwithstanding the success or failure of the aforementioned Congressional proposals, they all affirmed Congress’s enduring understanding that “sex,” as a protected class, refers only to one’s biological sex, as male or female, and not the radical re-authoring of the term now being foisted upon Americans by the collective efforts of Defendants. 26.

Moreover, Congress did overtly choose to extended protections for

“gender identity” in other areas of federal law. In 2010, President Obama signed into law hate crimes legislation, 18 U.S.C. § 249, which applies to, inter alia, “gender identity.” 18 U.S.C. § 249(a)(2). And in 2013, President Obama signed the Violence against Women Reauthorization Act (VAWA), prohibiting recipients of certain federal grants from discriminating on the basis of “sex” and “gender identity.” 42 U.S.C. § 13925(b)(13)(A). 27.

According to influential legal treatises, “gender identity” is not within

the ambit of Title VII. See, e.g., 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 551—52 (4th ed. 2007); 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 475—76 (3d ed. 1996). 28.

Yet the Obama Administration began to rewrite statutes to cover

“gender identity” as though they had actually been amended. For example: 

In a 2010 Dear Colleague Letter, the DOE’s Office of Civil Rights (“OCR”) asserted that “Title IX does protect all students, including . . . transgender (LGBT) students, from sex discrimination.” OCR, Dear Colleague Letter: Harassment and Bullying 8 (Oct. 26, 2010) (Exhibit A).

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 11

Case 7:16-cv-00054-O Document 1 Filed 05/25/16



Page 12 of 32 PageID 12

In 2014, OCR stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” OCR, Questions and Answers on Title IX and Sexual Violence B-2 (Apr. 29, 2014) (Exhibit B).



Attorney General Eric Holder issued a memo in 2014 concluding that Title

VII’s

prohibition

sexual

discrimination

“encompasses

discrimination based on gender identity, including transgender status.” DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 2 (Dec. 15, 2014) (Exhibit C). 

And in 2015, OSHA announced that it had published “guidance” for employers regarding restroom access for individuals who identify with the sex opposite their own. Press Release, OSHA, OSHA publishes guide to restroom access for transgender workers (June 1, 2015), available at https://www.osha.gov/newsrelease/trade-20150601.html.

OSHA’s

so-called

guidance concluded that “all employees should be permitted to use the facilities that correspond with their gender identity,” which is “internal” and could be “different from the sex they were assigned at birth.” OSHA, A guide to Restroom Access for Transgender Workers (2015) (Exhibit D) Finally, in 2016, the Obama Administration’s disregard for federal law as written— and the ability to maintain separate sex intimate facilities—reached its nadir in the Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 12

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 13 of 32 PageID 13

wake of events in North Carolina. C. North Carolina. 29.

On February 22, 2016, the City Council of Charlotte, North Carolina,

amended the city’s Non-Discrimination Ordinance (Exhibit E), requiring that every government and business bathroom and shower be simultaneously open to both sexes. In other words, Charlotte outlawed the right to maintain separate sex intimate facilities throughout the city. The North Carolina General Assembly then passed the Public Facilities Privacy and Security Act (“the Act”) (Exhibit F), preempting the Charlotte ordinance and providing that public employees and public school students use bathrooms and showers correlating with their biological sex, defined as the sex noted on their birth certificate. The Act does not establish a policy for private businesses and permits accommodations based on special circumstances. 30.

After signing the Act, North Carolina Governor Patrick L. McCrory

issued Executive Order 93 to Protect Privacy and Equality (“EO 93”) (Exhibit G). EO 93 expanded non-discrimination protections to state employees on the basis of “gender identity,” while simultaneously affirming that cabinet agencies should require multiple occupancy intimate facilities, like bathrooms, to be designated for use only by persons based on their biological sex. EO 93 directed agencies to make reasonable accommodations when practicable. 31.

Nevertheless, on May 3, 2016, the EEOC released a document titled

“Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964” (“Fact Sheet”) (Exhibit H). The Fact Sheet states that Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 13

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 14 of 32 PageID 14

Title VII’s prohibition of invidious discrimination on the basis of “sex” also now extends to “gender identity.” It further provides that employers that do not allow employees to use the bathroom and other intimate facilities of their choosing are liable for unlawful discrimination on the basis of “sex.” 32.

Then, on May 4, 2016, DOJ sent Governor McCrory a letter (Exhibit I),

declaring that the Act and EO 93 violate both Title VII and Title IX. DOJ threatened to “apply to [an] appropriate court for an order that will ensure compliance with” its ultra vires rewriting of the law. 33.

On May 9, 2016, DOJ sued North Carolina, asserting that both the Act

and EO 93 are impermissible under federal law. D. The DOJ / DOE Dear Colleague Letter. 34.

On May 13, 2016, DOJ and DOE issued a joint “Dear Colleague Letter”

(“the Letter”) (Exhibit J), officially foisting its new version of federal law on the more than 100,000 elementary and secondary schools that receive federal funding. 35.

The Letter contends that Title IX’s prohibition of invidious “sex”

discrimination also somehow encompasses discrimination based on “gender identity.” Further, it advises that schools taking a different view of Title IX face legal action and the loss of federal funds. The Letter concerns “Title IX obligations regarding transgender students” and provides insight as to the manner in which DOE and DOJ will evaluate how schools “are complying with their legal obligations” (emphasis added). It refers to an accompanying document collecting examples from school policies and recommends that school officials comb through the document “for Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 14

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 15 of 32 PageID 15

practical ways to meet Title IX’s requirements” (same). Indeed, the Letter amounts to “significant guidance” (emphasis in original). 36.

According to the Letter, schools must treat a student’s “gender identity”

as the student’s “sex” for purposes of Title IX compliance, with one notable exception. “Gender identity,” the Letter explains, refers to a person’s “internal sense of gender,” without regard for biological sex. It can be the same as a person’s biological sex, or different. The Letter provides that no medical diagnosis or treatment requirement is a prerequisite to selecting one’s “gender identity,” nor is there any form of temporal requirement. In other words, a student can choose one “gender identity” on one particular day or hour, and then another one the next. And students of any age may establish a “gender identity” different from their biological sex simply by notifying the school administration—the involvement of a parent or guardian is not necessary. 37.

In the case of athletics, however, the Letter does not require schools to

treat a student’s “gender identity” as the student’s sex for the purpose of Title IX compliance. Instead, the Letter basically leaves intact Title IX regulations allowing schools to restrict athletic teams to members of one biological sex. The only change that the Letter makes to athletic programs is that schools may not “rely on overly broad generalizations or stereotypes” about students. Otherwise, differentiating sports teams on the basis of sex—not “gender identity”—is consistent with the Letter. The Letter’s disparate treatment of bathrooms and showers, on the one hand, and athletics, on the other, demonstrates that DOE/DOJ is not simply demanding that schools abide by Title IX (as reinterpreted to substitute “gender identity” for “sex”). Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 15

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 16 of 32 PageID 16

Rather, the Letter tries to rewrite Title IX by executive fiat, mandating all bathrooms and showers open to both sexes, while simultaneously permitting different sex athletics subject to limited exceptions. The new policy has no basis in law. 38.

Adapting to the new circumstances put forth by DOE and DOJ requires

seismic changes in the operations of the nation’s school districts. Schools subject to Title IX must allow students to choose the restrooms, locker rooms, and other intimate facilities that match their chosen “gender identity” on any given day. Singlesex classes, schools, and dormitories must also be open to students based on their chosen “gender identity.” 39.

On May 16, 2016, the Attorneys General of Oklahoma, Texas, and West

Virginia sent DOJ and DOE a letter (Exhibit K) requesting clarification on the effect of the letter on agencies within these States. DOJ and DOE did not respond. E. Harrold Independent School District (TX). 40.

On May 23, 2016, school board members of the Harrold ISD (“the

Board”) convened a regular session. At the session, the Board adopted a policy (“the Policy”) (Exhibit L) consistent with its current practice. The Policy, which applies to students and employees of the Harrold ISD, limits multiple occupancy bathrooms and locker rooms to usage by persons based on their biological sex. The Policy also allows for accommodations. 41.

After adopting the Policy, the Board requested representation (Exhibit

M) from the Office of the Attorney General (OAG) of Texas, under Texas Education

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 16

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 17 of 32 PageID 17

Code § 11.151(e), to determine whether the Policy is in conflict with federal law and, if so, whether the Policy is enforceable. The OAG agreed to represent the Board. 42.

Harrold ISD is subject to Title VII and receives federal funding subject

to Title IX. In 2015–16, Harrold ISD operated on a total annual budget exceeding $1.4 million, with the federal portion amounting to approximately $117,000. 43.

The Defendants’ “significant guidance” Letter of May 13, 2016, (Exhibit

J) reiterates that Title IX and its implementing regulations apply to “educational programs and activities operated by recipients of Federal financial assistance” and that schools agree to same “as a condition of receiving federal assistance.” 44.

Thus, the federal government would be legally entitled to deny federal

funds that comprise a substantial portion of Harrold ISD’s budget if Harrold ISD chooses to follow its Policy instead of the new rules, regulations, guidance and interpretations of Defendants. F. Arizona Plaintiffs. 45.

Plaintiffs

Arizona

Department

Education,

and

through

Superintendent of Public Instruction Diane Douglas, and Heber-Overgaard Unified School District (collectively, the “Arizona Plaintiffs”) have requested that Arizona Attorney General Mark Brnovich represent them in the present litigation. Arizona Attorney General Mark Brnovich deems it necessary to represent the Arizona Plaintiffs. Arizona Department of Education Guideline and Procedure Doc. No. HR20 (Exhibit N), which applies to all Arizona Plaintiffs, provides that “It is not . . . discriminatory for a school to offer separate housing, toilet, athletic and other Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 17

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 18 of 32 PageID 18

facilities on the basis of sex, so long as the facilities provided to each sex are comparable.” G. Federal Education Funding. 46.

The threatened loss of all federal funding for state and local education

programs would have a major effect on State education budgets. All fifty States receives a share of the $69,867,660,640 in annual funding that the Federal Government directs to state and local education. DOE, Funds for State FormulaAllocated and Selected Student Aid Programs, U.S. Dep’t of Educ. Funding at 120 available

http://www2.ed.gov/about/overview/budget/statetables/index.html

(charts listing the amount of federal education funding by program nationally and by state). DOE estimates that the federal government will spend over $36 billion in State and local elementary and secondary education, and over $30 billion in State and local postsecondary education programs in 2016. 47.

Not counting funds paid directly to state education agencies, or funds

paid for non-elementary and secondary programs, the national amount of direct federal funding to public elementary and secondary schools alone exceeds $55,862,552,000 on average annually—which amounts to 9.3 percent of the average State’s total revenue for public elementary and secondary schools, or $1,128 per pupil. Texas’s public elementary and secondary schools, for example, receive an average of $5,872,123,000 annually, or $1,156 per pupil, which amounts to about 11.7 percent of the State’s revenue for public elementary and secondary schools. 48.

Alabama’s public elementary and secondary schools, for example,

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 18

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 19 of 32 PageID 19

receive an average of $850,523,000 annually, or $1,142 per pupil, which amounts to about 11.8 percent of the State’s revenue for public elementary and secondary schools. West Virginia’s public elementary and secondary schools, for example, receive an average of $380,192,000 annually, or $1,343 per pupil, which amounts to about 10.7 percent of the State’s revenue for public elementary and secondary schools. Wisconsin’s public elementary and secondary schools, for example, receive an average of $850,329,000 annually, or $975 per pupil, which amounts to about 7.9 percent of the State’s revenue for public elementary and secondary schools. The percentages in the other States are comparable. Nat’l Ctr. For Educ. Statistics, U.S. Dep’t of Educ. & Institute of Educ. Sciences, Digest of Education Statistics, Tab. 235.20, available at https://nces.ed.gov/programs/digest/d15/tables/dt15_235.20.asp?current=yes. IV. CLAIMS FOR RELIEF COUNT ONE Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Being Imposed Without Observance of Procedure Required by Law 49.

The allegations in paragraphs 1 through 48 are reincorporated herein.

50.

The APA requires this Court to hold unlawful and set aside any agency

action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 51.

Defendants are “agencies” under the APA, id. § 551(1), and the new

rules, regulations, guidance and interpretations described herein are “rules” under the APA, id. § 551(4), and constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” Id. § 704. Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 19

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

52.

Page 20 of 32 PageID 20

With exceptions that are not applicable here, agency rules must go

through notice-and-comment rulemaking. Id. § 553. 53. rulemaking

Defendants in

failed

promulgating

to the

properly new

engage

rules,

notice-and-comment

regulations,

guidance,

and

interpretations described herein. COUNT TWO Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Exceeding Congressional Authorization 54.

The allegations in paragraphs 1 through 53 are reincorporated herein.

55.

The new rules, regulations, guidance and interpretations described

herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 56.

The Defendants are “agencies” under the APA, id. § 701(b)(1), and the

new rules, regulations, guidance and interpretations described herein are “rules” under the APA. Id. § 701(b)(2). 57.

The APA requires this Court to hold unlawful and set aside any agency

action that is “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(B)–(C). 58.

The new rules, regulations, guidance and interpretations described

herein go so far beyond any reasonable reading of the relevant Congressional text such that the new rules, regulations, guidance and interpretations functionally Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 20

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 21 of 32 PageID 21

exercise lawmaking power reserved only to Congress. U.S. CONST. art. I, § 1 (“All legislative powers herein granted shall be vested in . . . Congress”) (emphasis added); The Federalist No. 48, at 256 (James Madison) (Carey and McClellan eds. 1990) (noting that “[i]t is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” but that “the executive power [is] restrained within a narrower compass and . . . more simple in its nature”). 59.

The new rules, regulations, guidance and interpretations described

herein also violate separation of powers principles by purporting to expand federal court jurisdiction to cover whether persons of both sexes have a right to use previously separate sex intimate facilities, an issue on which Congress has not intended to legislate. Only Congress, not an agency, can expand federal court jurisdiction, U.S. CONST. art. III, § 1-2; Vaden v. Discover Bank, 556 U.S. 49, 59 n.9 (2009); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“[Federal courts] possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.) (internal citations omitted); Kline v. Burke Const. Co., 260 U.S. 226, 234 (1922) (“[A] court created by the general government derives its jurisdiction wholly from the authority of Congress . . . . provided it be not extended beyond the boundaries fixed by the Constitution.”), and the Defendants’ attempt to do so as described herein violates the constitutional separation of powers.

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 21

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

60.

Page 22 of 32 PageID 22

Because the new rules, regulations, guidance and interpretations are

not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside. COUNT THREE Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful by Violating the Tenth Amendment 61.

The allegations in paragraphs 1 through 60 are reincorporated herein.

62.

The new rules, regulations, guidance and interpretations described

herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 63.

The federal government is one of limited, enumerated powers; all

others—including a general police power—are reserved to the States. See United States v. Morrison, 529 U.S. 598, 617–19 (2000). The States’ police power includes the “protection of the safety of persons,” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82 (1946), the “general power of governing,” NFIB, 132 S. Ct. at 2578, and the “authority to enact legislation for the public good,” Bond v. United States, 134 S. Ct. 2077, 2086 (2014). 64.

The Tenth Amendment provides that “[t]he powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. 65.

The new rules, regulations, guidance and interpretations described

herein violate the Tenth Amendment because they effectively commandeer the Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 22

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 23 of 32 PageID 23

States’ historic and well-established regulation of civil privacy law. New York v. United States, 505 U.S. 144, 162 (1992) (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”). 66.

The new rules, regulations, guidance and interpretations described

herein unlawfully attempt to preempt State law regarding rights of privacy because historic powers reserved to the States, such as civil privacy protections, cannot be superseded by federal act, “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009); Gregory v. Ashcroft, 501 U.S. 452, 460–70 (1991). As explained herein, not only is there no evidence that Congress intended to regulate civil privacy circumstances within the States, but legislative history demonstrates that Congress expressed its clear intent to not encroach upon the traditional State role in safeguarding privacy expectations in the workplace, public accommodations, and educational settings. 67.

Because the new rules, regulations, guidance and interpretations are

not in accordance with the law as articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside.

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 23

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 24 of 32 PageID 24

COUNT FOUR Relief Under 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance, and Interpretations at Issue Are Unlawful by Violating the Fourteenth Amendment 68.

The allegations in paragraphs 1 through 67 are reincorporated herein.

69.

The new rules, regulations, guidance and interpretations described

herein constitute “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 70.

The Fourteenth Amendment guarantees “equal protection of the laws.”

U.S. CONST. amend. XIV, § 1. The new rules, regulations, and interpretations violate the Fourteenth Amendment because they treat similarly situated students and employees different. 71.

The new rules, regulations, guidance and interpretations described

herein violate the Fourteenth Amendment because they treat similarly situated students and employees differently. The new rules, regulations, guidance and interpretations described herein provide access to all restrooms and showers for individuals who self-identify as the opposite sex. But if the right or ability to use the intimate facilities of one’s choosing extends only to those who self-identify as the opposite sex then the new rules, regulations, guidance and interpretations treat unequally students and employees that require access to intimate areas. 72.

Due to the new rules, regulations, guidance and interpretations

described herein, Defendants are selectively enforcing new principles differently as to similarly situated students and employees, which violates the principle of equal Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 24

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 25 of 32 PageID 25

protection contained within the Fourteenth Amendment 73.

Because the new rules, regulations, guidance and interpretations are

not in accordance with the law articulated above, they are unlawful, violate 5 U.S.C. § 706, and should be set aside. COUNT FIVE Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Unlawfully Attempt to Abrogate State Sovereign Immunity. 74.

The allegations in paragraphs 1 through 73 are reincorporated herein.

75.

The new rules, regulations, guidance and interpretations improperly

abrogate the States’ sovereign immunity without supporting Congressional findings. 76.

The Supreme Court has acknowledged Congress’s abrogation of the

States’ sovereign immunity in the employment context, but only on the basis of Congressional findings and concerns about State workplace discrimination regarding unequal treatment between men and women, and not an employee’s decision on whether they choose to define themselves as a man or woman. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728 and n.2 (2003) (observing that the FMLA aims to promote the goal of equal employment opportunity for women and men). 77.

In adopting their new rules, regulations, guidance and interpretations,

the Defendants point to no Congressional findings about invidious discrimination by the States (or any other employer) based on “gender identity.” Indeed, the Defendants did not even consider whether Congress intended the term “sex” to include an individual’s right to choose their sex, or properly refers to “sex” as an immutable, Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 25

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 26 of 32 PageID 26

biological fact established at one’s birth. The Defendants cannot expand abrogation of the State’s sovereign immunity by rewriting the definition of “sex” as it was originally adopted by Congress. COUNT SIX Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance and Interpretations at Issue Are Arbitrary and Capricious 78.

The allegations in paragraphs 1 through 77 are reincorporated herein.

79.

The APA requires this Court to hold unlawful and set aside any agency

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 80.

Defendants’ actions—rewriting federal law to suit their own policy

preferences—are arbitrary and capricious and not otherwise in accordance with the law. Defendants’ actions are arbitrary and capricious because they interfere with local schools by unilaterally redefining the statutory term “sex”—long and widely accepted to be a biological category—to include “gender identity.” Title IX and Title VII do not refer to “gender identity.” Nor does 34 C.F.R. § 106.33, which expressly authorizes separate restrooms and locker rooms “on the basis of sex.” The federal laws at issue prohibit disparate treatment “on the basis of sex,” 20 U.S.C. § 1681(a); 34 C.F.R. § 106.33, a term long understood unambiguously to be a biological category based principally on male or female reproductive anatomy, and not one that includes self-proclaimed “gender identity.”

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 26

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 27 of 32 PageID 27

COUNT SEVEN Relief Under 5 U.S.C. § 706 (APA) that new Rules, Regulations, Guidance and Interpretations at Issue Are Arbitrary and Capricious 81.

The allegations in paragraphs 1 through 80 are reincorporated herein.

82.

The APA requires this Court to hold unlawful and set aside any agency

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 83.

Under PREA (Prison Rape Elimination Act), 42 U.S.C. § 15601 et seq.,

those that identify as the sex opposite their biological sex have the option to shower separately. 28 C.F.R. § 115.42(f). Coupling this element in PREA with the new rules, regulations, guidance and interpretations at issue (where everyone may identify as the opposite sex, if they choose to do so) means that every inmate has the right to take a separate shower, which is an untenable position (and, thus, arbitrary and capricious), especially within a correctional circumstance. COUNT EIGHT Relief Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful and Violate Constitutional Standards of Clear Notice 84.

The allegations in paragraphs 1 through 83 are reincorporated herein.

85.

The APA requires this Court to hold unlawful and set aside any agency

action that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 86.

When Congress exercises its Spending Clause power, principles of

federalism require that conditions on Congressional funds must enable the recipient Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 27

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 28 of 32 PageID 28

“clearly understand,” from the language of the law itself, the conditions to which they are agreeing to when accepting the federal funds. Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). Further, the ex-post interpretation in the new rules is not in accord with the interpretation that existed when the States opted into the spending program. Bennett v. New Jersey, 470 U.S. 632, 638 (1985) (providing that a state’s obligation under cooperative federalism program ‘‘generally should be determined by reference to the law in effect when the grants were made’’). 87.

The text employed by Congress does not support the term “sex” as

anything other than one’s immutable, biological sex as determined at birth. Rather, Congress expressed its intent to cover “gender identity,” as a protected class, in other pieces of legislation. See, e.g., 18 U.S.C. § 249(a)(2)(A); 42 U.S.C. § 13925(b)(13)(A). In those pieces of legislation, Congress includes “gender identity” along with “sex,” thus evidencing its intent for “sex” to retain its original and only meaning—one’s immutable, biological sex as determined at birth. COUNT NINE Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 706 (APA) that the new Rules, Regulations, Guidance and Interpretations at Issue Are Unlawful and Unconstitutionally Coercive 88.

The allegations in paragraphs 1 through 87 are reincorporated herein.

89.

By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if

they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy. See NFIB v. Sebelius, 132 S. Ct. 2566, 2605 (2012) (“The threatened loss of Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 28

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 29 of 32 PageID 29

over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce . . . .”). 90.

“The legitimacy of Congress’s exercise of the spending power ‘thus rests

on whether the [entity] voluntarily and knowingly accepts the terms of the ‘contract.’” NFIB, 132 S. Ct. at 2602 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns

into

compulsion,’

the

legislation

runs

contrary

our

system

federalism.” Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Id. 91.

“[T]he financial ‘inducement’ [Defendants have] chosen is much more

than ‘relatively mild encouragement’ – it is a gun to the head.” Id. at 2604. When conditions on the receipt of funds “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the states to accept policy changes.” Id.; cf. South Dakota v. Dole, 483 U.S. 203, 211 (1987). 92.

Furthermore, the Spending Clause requires that the entities

“voluntarily and knowingly accept[]” the conditions for the receipt of federal funds. NFIB, 132 S. Ct. at 2602 (quoting Halderman, 451 U.S. at 17). 93.

Because

Defendants’

new

rules,

regulations,

guidance

and

interpretations change the conditions for the receipt of federal funds after the states Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 29

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

Page 30 of 32 PageID 30

had already accepted Congress’s original conditions, the Court should declare that the new rules, regulations, guidance and interpretations are unconstitutional because they violate the Spending Clause. COUNT TEN Declaratory Judgment Under 28 U.S.C. §§ 2201-2202 (DJA) and 5 U.S.C. § 611 (RFA) that the new Rules, Regulations, Guidance and Interpretations Were Issued Without a Proper Regulatory Flexibility Analysis 94.

The allegations in paragraphs 1 through 93 are reincorporated herein.

95.

Before issuing any of the new rules, regulations, guidance and

interpretations at issue, Defendants failed to prepare and make available for public comment an initial and final regulatory flexibility analysis as required by the RFA. 5 U.S.C. § 603(a). An agency can avoid performing a flexibility analysis if the agency’s top official certifies that the rule will not have a significant economic impact on a substantial number of small entities. Id. § 605(b). The certification must include a statement providing the factual basis for the agency’s determination that the rule will not significantly impact small entities. Id. 96. Court

None of the Defendants even attempted such a certification. Thus, the

should

declare

Defendants’

new

rules,

regulations,

guidance

and

interpretations unlawful and set them aside.

V. DEMAND FOR JUDGMENT Plaintiffs respectfully request the following relief from the Court:

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 30

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

97.

Page 31 of 32 PageID 31

A declaration that the new rules, regulations, guidance and

interpretations are unlawful and must be set aside as actions taken “without observance of procedure required by law” under the APA; 98.

A declaration that the new rules, regulations, guidance and

interpretations are substantively unlawful under the APA; 99.

A declaration that the new rules, regulations, guidance and

interpretations are arbitrary and capricious under the APA; 100.

A declaration that the new rules, regulations, guidance and

interpretations are invalid because they abrogate Plaintiffs’ sovereign immunity; 101.

A declaration that the new rules, regulations, guidance and

interpretations are invalid because Defendants failed to conduct the proper regulatory flexibility analysis required by the RFA. 102.

A vacatur, as a consequence of each or any of the declarations aforesaid,

as to the Defendants’ promulgation, implementation, and determination of applicability of the “significant guidance” document, and its terms and conditions, along with all related rules, regulations, guidance and interpretations, as issued and applied to Plaintiffs and similarly situated parties throughout the United States, within the jurisdiction of this Court. 103.

Preliminary relief, enjoining the new rules, regulations, guidance and

interpretations from having any legal effect;

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 31

Case 7:16-cv-00054-O Document 1 Filed 05/25/16

104.

Page 32 of 32 PageID 32

A final, permanent injunction preventing the Defendants from

implementing, applying, or enforcing the new rules, regulations, and guidance interpretations; and 105.

All other relief to which the Plaintiffs may show themselves to be

entitled, including attorneys’ fees and costs of courts. Respectfully submitted, LUTHER STRANGE Attorney General of Alabama

KEN PAXTON Attorney General of Texas

BRAD D. SCHIMEL Attorney General of Wisconsin

JEFFREY C. MATEER First Assistant Attorney General

PATRICK MORRISEY Attorney General of West Virginia

BRANTLEY STARR Deputy First Assistant Attorney General

HERBERT SLATERY, III Attorney General of Tennessee

PRERAK SHAH Senior Counsel to the Attorney General

MARK BRNOVICH Attorney General of Arizona

ANDREW LEONIE Associate Deputy Attorney General for Special Litigation

SCOTT PRUITT Attorney General of Oklahoma JEFF LANDRY Attorney General of Louisiana SEAN REYES Attorney General of Utah SAM OLENS Attorney General of Georgia

AUSTIN R. NIMOCKS Associate Deputy Attorney General for Special Litigation /s/ Austin R. Nimocks AUSTIN R. NIMOCKS Texas Bar No. 24002695 Austin.Nimocks@texasattorneygeneral.gov Special Litigation Division P.O. Box 12548, Mail Code 001 Austin, Texas 78711-2548 ATTORNEYS FOR PLAINTIFFS

Plaintiffs’ Original Complaint for Declaratory and Injunctive Relief

Page 32

U.S. Department of Justice Civil Rights Division

U.S. Department of Education Office for Civil Rights

Dear Colleague Letter on Transgender Students Notice of Language Assistance If you have difficulty understanding English, you may, free of charge, request language assistance services for this Department information by calling 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-8778339), or email us at: Ed.Language.Assistance@ed.gov. Aviso a personas con dominio limitado del idioma inglés: Si usted tiene alguna dificultad en entender el idioma inglés, puede, sin costo alguno, solicitar asistencia lingüística con respecto a esta información llamando al 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o envíe un mensaje de correo electrónico a: Ed.Language.Assistance@ed.gov. 給英語能力有限人士的通知: 如果您不懂英語，或者使用英语有困难，您可以要求獲得向大眾提供的語言協助服務，幫助您理解教育部資訊。這些語言協助服務均可免費提供。如果您需要有關口譯或筆譯服務的詳細資訊，請致電 1-800-USA-LEARN (1-800-872-5327) (聽語障人士專線：1-800877-8339),或電郵: Ed.Language.Assistance@ed.gov。 Thông báo dành cho những người có khả năng Anh ngữ hạn chế: Nếu quý vị gặp khó khăn trong việc hiểu Anh ngữ thì quý vị có thể yêu cầu các dịch vụ hỗ trợ ngôn ngữ cho các tin tức của Bộ dành cho công chúng. Các dịch vụ hỗ trợ ngôn ngữ này đều miễn phí. Nếu quý vị muốn biết thêm chi tiết về các dịch vụ phiên dịch hay thông dịch, xin vui lòng gọi số 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-8778339), hoặc email: Ed.Language.Assistance@ed.gov. 영어 미숙자를 위한 공고: 영어를 이해하는 데 어려움이 있으신 경우, 교육부 정보 센터에 일반인 대상 언어 지원 서비스를 요청하실 수 있습니다. 이러한 언어 지원 서비스는 무료로 제공됩니다. 통역이나 번역 서비스에 대해 자세한 정보가 필요하신 경우, 전화번호 1-800-USA-LEARN (1-800872-5327) 또는 청각 장애인용 전화번호 1-800-877-8339 또는 이메일주소 Ed.Language.Assistance@ed.gov 으로 연락하시기 바랍니다. Paunawa sa mga Taong Limitado ang Kaalaman sa English: Kung nahihirapan kayong makaintindi ng English, maaari kayong humingi ng tulong ukol dito sa inpormasyon ng Kagawaran mula sa nagbibigay ng serbisyo na pagtulong kaugnay ng wika. Ang serbisyo na pagtulong kaugnay ng wika ay libre. Kung kailangan ninyo ng dagdag na impormasyon tungkol sa mga serbisyo kaugnay ng pagpapaliwanag o pagsasalin, mangyari lamang tumawag sa 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o mag-email sa: Ed.Language.Assistance@ed.gov. Уведомление для лиц с ограниченным знанием английского языка: Если вы испытываете трудности в понимании английского языка, вы можете попросить, чтобы вам предоставили перевод информации, которую Министерство Образования доводит до всеобщего сведения. Этот перевод предоставляется бесплатно. Если вы хотите получить более подробную информацию об услугах устного и письменного перевода, звоните по телефону 1-800-USA-LEARN (1-800-872-5327) (служба для слабослышащих: 1-800-877-8339), или отправьте сообщение по адресу: Ed.Language.Assistance@ed.gov.

U.S. Department of Justice Civil Rights Division

U.S. Department of Education Office for Civil Rights May 13, 2016

Dear Colleague: Schools across the country strive to create and sustain inclusive, supportive, safe, and nondiscriminatory communities for all students. In recent years, we have received an increasing number of questions from parents, teachers, principals, and school superintendents about civil rights protections for transgender students. Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.1 This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. This letter summarizes a school’s Title IX obligations regarding transgender students and explains how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) evaluate a school’s compliance with these obligations. ED and DOJ (the Departments) have determined that this letter is significant guidance.2 This guidance does not add requirements to applicable law, but provides information and examples to inform recipients about how the Departments evaluate whether covered entities are complying with their legal obligations. If you have questions or are interested in commenting on this guidance, please contact ED at ocr@ed.gov or 800-421-3481 (TDD 800-877-8339); or DOJ at education@usdoj.gov or 877-292-3804 (TTY: 800-514-0383). Accompanying this letter is a separate document from ED’s Office of Elementary and Secondary Education, Examples of Policies and Emerging Practices for Supporting Transgender Students. The examples in that document are taken from policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment. Schools are encouraged to consult that document for practical ways to meet Title IX’s requirements.3 Terminology 

Gender identity refers to an individual’s internal sense of gender. A person’s gender identity may be different from or the same as the person’s sex assigned at birth.



Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.



Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.

Dear Colleague Letter: Transgender Students 

Page 2 of 8

Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. During gender transition, individuals begin to live and identify as the sex consistent with their gender identity and may dress differently, adopt a new name, and use pronouns consistent with their gender identity. Transgender individuals may undergo gender transition at any stage of their lives, and gender transition can happen swiftly or over a long duration of time.

Compliance with Title IX As a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX or its implementing regulations.4 The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination.5 The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.6 Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence),7 requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity. A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.8 1. Safe and Nondiscriminatory Environment Schools have a responsibility to provide a safe and nondiscriminatory environment for all students, including transgender students. Harassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly.9 If sex-based harassment creates a hostile environment, the school must take prompt and effective steps to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. A school’s failure to treat students consistent with their gender identity may create or contribute to a hostile environment in violation of Title IX. For a more detailed discussion of Title IX

Dear Colleague Letter: Transgender Students

Page 3 of 8

requirements related to sex-based harassment, see guidance documents from ED’s Office for Civil Rights (OCR) that are specific to this topic.10 2. Identification Documents, Names, and Pronouns Under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex. The Departments have resolved Title IX investigations with agreements committing that school staff and contractors will use pronouns and names consistent with a transgender student’s gender identity.11 3. Sex-Segregated Activities and Facilities Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.12 When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.13 

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.14 A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.15



Athletics. Title IX regulations permit a school to operate or sponsor sex-segregated athletics teams when selection for such teams is based upon competitive skill or when the activity involved is a contact sport.16 A school may not, however, adopt or adhere to requirements that rely on overly broad generalizations or stereotypes about the differences between transgender students and other students of the same sex (i.e., the same gender identity) or others’ discomfort with transgender students.17 Title IX does not prohibit age-appropriate, tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.18



Single-Sex Classes. Although separating students by sex in classes and activities is generally prohibited, nonvocational elementary and secondary schools may offer nonvocational single-sex classes and extracurricular activities under certain circumstances.19 When offering such classes and activities, a school must allow transgender students to participate consistent with their gender identity.



Single-Sex Schools. Title IX does not apply to the admissions policies of certain educational institutions, including nonvocational elementary and secondary schools, and private undergraduate colleges.20 Those schools are therefore permitted under Title IX to set their own

Dear Colleague Letter: Transgender Students

Page 4 of 8

sex-based admissions policies. Nothing in Title IX prohibits a private undergraduate women’s college from admitting transgender women if it so chooses. 

Social Fraternities and Sororities. Title IX does not apply to the membership practices of social fraternities and sororities.21 Those organizations are therefore permitted under Title IX to set their own policies regarding the sex, including gender identity, of their members. Nothing in Title IX prohibits a fraternity from admitting transgender men or a sorority from admitting transgender women if it so chooses.



Housing and Overnight Accommodations. Title IX allows a school to provide separate housing on the basis of sex.22 But a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations or to disclose personal information when not required of other students. Nothing in Title IX prohibits a school from honoring a student’s voluntary request for singleoccupancy accommodations if it so chooses.23



Other Sex-Specific Activities and Rules. Unless expressly authorized by Title IX or its implementing regulations, a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule. Likewise, a school may not discipline students or exclude them from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical notions of masculinity or femininity (e.g., in yearbook photographs, at school dances, or at graduation ceremonies).24 4. Privacy and Education Records

Protecting transgender students’ privacy is critical to ensuring they are treated consistent with their gender identity. The Departments may find a Title IX violation when a school limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.25 Nonconsensual disclosure of personally identifiable information (PII), such as a student’s birth name or sex assigned at birth, could be harmful to or invade the privacy of transgender students and may also violate the Family Educational Rights and Privacy Act (FERPA).26 A school may maintain records with this information, but such records should be kept confidential. 

Disclosure of Personally Identifiable Information from Education Records. FERPA generally prevents the nonconsensual disclosure of PII from a student’s education records; one exception is that records may be disclosed to individual school personnel who have been determined to have a legitimate educational interest in the information.27 Even when a student has disclosed the student’s transgender status to some members of the school community, schools may not rely on this FERPA exception to disclose PII from education records to other school personnel who do not have a legitimate educational interest in the information. Inappropriately disclosing (or requiring students or their parents to disclose) PII from education records to the school community may

Dear Colleague Letter: Transgender Students

Page 5 of 8

violate FERPA and interfere with transgender students’ right under Title IX to be treated consistent with their gender identity. 

Disclosure of Directory Information. Under FERPA’s implementing regulations, a school may disclose appropriately designated directory information from a student’s education record if disclosure would not generally be considered harmful or an invasion of privacy.28 Directory information may include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance.29 School officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy.30 A school also must allow eligible students (i.e., students who have reached 18 years of age or are attending a postsecondary institution) or parents, as appropriate, a reasonable amount of time to request that the school not disclose a student’s directory information.31



Amendment or Correction of Education Records. A school may receive requests to correct a student’s education records to make them consistent with the student’s gender identity. Updating a transgender student’s education records to reflect the student’s gender identity and new name will help protect privacy and ensure personnel consistently use appropriate names and pronouns. o

Under FERPA, a school must consider the request of an eligible student or parent to amend information in the student’s education records that is inaccurate, misleading, or in violation of the student’s privacy rights.32 If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. If, after the hearing, the school does not amend the record, it must inform the requestor of the right to insert a statement in the record with the requestor’s comments on the contested information, a statement that the requestor disagrees with the hearing decision, or both. That statement must be disclosed whenever the record to which the statement relates is disclosed.33 o Under Title IX, a school must respond to a request to amend information related to a student’s transgender status consistent with its general practices for amending other students’ records.34 If a student or parent complains about the school’s handling of such a request, the school must promptly and equitably resolve the complaint under the school’s Title IX grievance procedures.35 *** We appreciate the work that many schools, state agencies, and other organizations have undertaken to make educational programs and activities welcoming, safe, and inclusive for all students. Sincerely, /s/

/s/

Catherine E. Lhamon Assistant Secretary for Civil Rights U.S. Department of Education

Vanita Gupta Principal Deputy Assistant Attorney General for Civil Rights U.S. Department of Justice

Dear Colleague Letter: Transgender Students

Page 6 of 8

20 U.S.C. §§ 1681–1688; 34 C.F.R. Pt. 106; 28 C.F.R. Pt. 54. In this letter, the term schools refers to recipients of Federal financial assistance at all educational levels, including school districts, colleges, and universities. An educational institution that is controlled by a religious organization is exempt from Title IX to the extent that compliance would not be consistent with the religious tenets of such organization. 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12(a). 2

Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf.

ED, Examples of Policies and Emerging Practices for Supporting Transgender Students (May 13, 2016), www.ed.gov/oese/oshs/emergingpractices.pdf. OCR also posts many of its resolution agreements in cases involving transgender students online at www.ed.gov/ocr/lgbt.html. While these agreements address factspecific cases, and therefore do not state general policy, they identify examples of ways OCR and recipients have resolved some issues addressed in this guidance. 4

34 C.F.R. §§ 106.4, 106.31(a). For simplicity, this letter cites only to ED’s Title IX regulations. DOJ has also promulgated Title IX regulations. See 28 C.F.R. Pt. 54. For purposes of how the Title IX regulations at issue in this guidance apply to transgender individuals, DOJ interprets its regulations similarly to ED. State and local rules cannot limit or override the requirements of Federal laws. See 34 C.F.R. § 106.6(b). 5

See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 WL 1567467, at *8 (4th Cir. Apr. 19, 2016); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 572-75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000); Schroer v. Billington, 577 F. Supp. 2d 293, 306-08 (D.D.C. 2008); Macy v. Dep’t of Justice, Appeal No. 012012082 (U.S. Equal Emp’t Opportunity Comm’n Apr. 20, 2012). See also U.S. Dep’t of Labor (USDOL), Training and Employment Guidance Letter No. 37-14, Update on Complying with Nondiscrimination Requirements: Discrimination Based on Gender Identity, Gender Expression and Sex Stereotyping are Prohibited Forms of Sex Discrimination in the Workforce Development System (2015), wdr.doleta.gov/directives/attach/TEGL/TEGL_3714.pdf; USDOL, Job Corps, Directive: Job Corps Program Instruction Notice No. 14-31, Ensuring Equal Access for Transgender Applicants and Students to the Job Corps Program (May 1, 2015), https://supportservices.jobcorps.gov/Program%20Instruction%20Notices/pi_14_31.pdf; DOJ, Memorandum from the Attorney General, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (2014), www.justice.gov/sites/default/files/opa/pressreleases/attachments/2014/12/18/title_vii_memo.pdf; USDOL, Office of Federal Contract Compliance Programs, Directive 2014-02, Gender Identity and Sex Discrimination (2014), www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html. 6

See Lusardi v. Dep’t of the Army, Appeal No. 0120133395 at 9 (U.S. Equal Emp’t Opportunity Comm’n Apr. 1, 2015) (“An agency may not condition access to facilities—or to other terms, conditions, or privileges of employment—on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”). 7

See G.G., 2016 WL 1567467, at *1 n.1 (noting that medical authorities “do not permit sex reassignment surgery for persons who are under the legal age of majority”).

34 C.F.R. § 106.31(b)(4); see G.G., 2016 WL 1567467, at *8 & n.10 (affirming that individuals have legitimate and important privacy interests and noting that these interests do not inherently conflict with nondiscrimination principles); Cruzan v. Special Sch. Dist. No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (rejecting claim that allowing a transgender woman “merely [to be] present in the women’s faculty restroom” created a hostile environment); Glenn, 663 F.3d at 1321 (defendant’s proffered justification that “other women might object to [the plaintiff]’s restroom use” was “wholly irrelevant”). See also Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (recognizing that “mere negative attitudes, or fear . . . are not permissible bases for” government action).

Dear Colleague Letter: Transgender Students

Page 7 of 8

See, e.g., Resolution Agreement, In re Downey Unified Sch. Dist., CA, OCR Case No. 09-12-1095, (Oct. 8, 2014), www.ed.gov/documents/press-releases/downey-school-district-agreement.pdf (agreement to address harassment of transgender student, including allegations that peers continued to call her by her former name, shared pictures of her prior to her transition, and frequently asked questions about her anatomy and sexuality); Consent Decree, Doe v. Anoka-Hennepin Sch. Dist. No. 11, MN (D. Minn. Mar. 1, 2012), www.ed.gov/ocr/docs/investigations/05115901-d.pdf (consent decree to address sex-based harassment, including based on nonconformity with gender stereotypes); Resolution Agreement, In re Tehachapi Unified Sch. Dist., CA, OCR Case No. 09-11-1031 (June 30, 2011), www.ed.gov/ocr/docs/investigations/09111031-b.pdf (agreement to address sexual and gender-based harassment, including harassment based on nonconformity with gender stereotypes). See also Lusardi, Appeal No. 0120133395, at *15 (“Persistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment”). 10

See, e.g., OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001), www.ed.gov/ocr/docs/shguide.pdf; OCR, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010), www.ed.gov/ocr/letters/colleague-201010.pdf; OCR, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), www.ed.gov/ocr/letters/colleague-201104.pdf; OCR, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf. 11

See, e.g., Resolution Agreement, In re Cent. Piedmont Cmty. Coll., NC, OCR Case No. 11-14-2265 (Aug. 13, 2015), www.ed.gov/ocr/docs/investigations/more/11142265-b.pdf (agreement to use a transgender student’s preferred name and gender and change the student’s official record to reflect a name change). 12

34 C.F.R. §§ 106.32, 106.33, 106.34, 106.41(b).

See 34 C.F.R. § 106.31.

34 C.F.R. § 106.33.

See, e.g., Resolution Agreement, In re Township High Sch. Dist. 211, IL, OCR Case No. 05-14-1055 (Dec. 2, 2015), www.ed.gov/ocr/docs/investigations/more/05141055-b.pdf (agreement to provide any student who requests additional privacy “access to a reasonable alternative, such as assignment of a student locker in near proximity to the office of a teacher or coach; use of another private area (such as a restroom stall) within the public area; use of a nearby private area (such as a single-use facility); or a separate schedule of use.”). 16

34 C.F.R. § 106.41(b). Nothing in Title IX prohibits schools from offering coeducational athletic opportunities.

34 C.F.R. § 106.6(b), (c). An interscholastic athletic association is subject to Title IX if (1) the association receives Federal financial assistance or (2) its members are recipients of Federal financial assistance and have ceded controlling authority over portions of their athletic program to the association. Where an athletic association is covered by Title IX, a school’s obligations regarding transgender athletes apply with equal force to the association. 18

The National Collegiate Athletic Association (NCAA), for example, reported that in developing its policy for participation by transgender students in college athletics, it consulted with medical experts, athletics officials, affected students, and a consensus report entitled On the Team: Equal Opportunity for Transgender Student Athletes (2010) by Dr. Pat Griffin & Helen J. Carroll (On the Team), https://www.ncaa.org/sites/default/files/NCLR_TransStudentAthlete%2B(2).pdf. See NCAA Office of Inclusion, NCAA Inclusion of Transgender Student-Athletes 2, 30-31 (2011), https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf (citing On the Team). The On the Team report noted that policies that may be appropriate at the college level may “be unfair and too complicated for [the high school] level of competition.” On the Team at 26. After engaging in similar processes, some state interscholastic athletics associations have adopted policies for participation by transgender students in high school athletics that they determined were age-appropriate. 19

34 C.F.R. § 106.34(a), (b). Schools may also separate students by sex in physical education classes during participation in contact sports. Id. § 106.34(a)(1). 20

20 U.S.C. § 1681(a)(1); 34 C.F.R. § 106.15(d); 34 C.F.R. § 106.34(c) (a recipient may offer a single-sex public nonvocational elementary and secondary school so long as it provides students of the excluded sex a “substantially

Dear Colleague Letter: Transgender Students

Page 8 of 8

equal single-sex school or coeducational school”). 21

20 U.S.C. § 1681(a)(6)(A); 34 C.F.R. § 106.14(a).

20 U.S.C. § 1686; 34 C.F.R. § 106.32.

See, e.g., Resolution Agreement, In re Arcadia Unified. Sch. Dist., CA, OCR Case No. 09-12-1020, DOJ Case No. 169-12C-70, (July 24, 2013), www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadiaagree.pdf (agreement to provide access to single-sex overnight events consistent with students’ gender identity, but allowing students to request access to private facilities). 24

See 34 C.F.R. §§ 106.31(a), 106.31(b)(4). See also, In re Downey Unified Sch. Dist., CA, supra n. 9; In re Cent. Piedmont Cmty. Coll., NC, supra n. 11. 25

34 C.F.R. § 106.31(b)(7).

20 U.S.C. § 1232g; 34 C.F.R. Part 99. FERPA is administered by ED’s Family Policy Compliance Office (FPCO). Additional information about FERPA and FPCO is available at www.ed.gov/fpco. 27

20 U.S.C. § 1232g(b)(1)(A); 34 C.F.R. § 99.31(a)(1).

34 C.F.R. §§ 99.3, 99.31(a)(11), 99.37.

20 U.S.C. § 1232g(a)(5)(A); 34 C.F.R. § 99.3.

Letter from FPCO to Institutions of Postsecondary Education 3 (Sept. 2009), www.ed.gov/policy/gen/guid/fpco/doc/censuslettertohighered091609.pdf. 31

20 U.S.C. § 1232g(a)(5)(B); 34 C.F.R. §§ 99.3. 99.37(a)(3).

34 C.F.R. § 99.20.

34 C.F.R. §§ 99.20-99.22.

See 34 C.F.R. § 106.31(b)(4).

34 C.F.R. § 106.8(b).

CRISIS MANAGEMENT DEBRA OWEN ATTORNEY, JACKSON, SHIELDS, YEISER & HOLT

6/12/16

Crisis Management: Communication is Key Debra D. Owen Jackson, Shields, Yeiser & Holt 2016 TSBA Summer Law Institute

• Introduction • Legal Requirements • Resources • Effective Crisis Communication

There cannot be a crisis next week. My schedule is already full. Henry A. Kissinger, As quoted in The New York Times Magazine (June 1, 1969)

6/12/16

Tenn. Code Ann. § 49-1-302. (a)(16)(A) Promulgate…rules requiring each LEA that has a jurisdiction that lies entirely or partially within one hundred (100) miles of the New Madrid fault line to implement earthquake preparedness drills in each of the schools administered by that LEA….The rules shall include a model plan for earthquake preparedness drills in schools, and the model plan shall be suitable for adoption or modification by affected LEAs;

Tenn. Code Ann. § 49-1-302. (B) The drills shall be conducted at least twice every school year. A record of all earthquake preparedness drills, including the time and date, shall be kept in the respective schools and shall be made available for review upon request by the board;

6/12/16

Tenn. Code Ann. § 49-2-118. (a) Each LEA shall implement for grades one

through six (1-6) an intervention program that utilizes conflict resolution and decisionmaking strategies aimed at preventing occurrences of disruptive acts by students within the school and on school property.

Tenn. Code Ann. § 49-6-804. (a) Each LEA shall adopt a comprehensive district-wide school safety plan and building-level school safety plans regarding crisis intervention, emergency response and emergency management. The plans shall be developed by a district-wide school safety team and a building-level school safety team established pursuant to this part and shall follow the template developed by the state-level safety team. An LEA having only one (1) school building shall develop a single building-level school safety plan, which shall also fulfill all requirements for development of a district-wide plan.

Tenn. Code Ann. § 49-6-804. (c) Each LEA shall provide to the local law enforcement agency with jurisdiction the LEA's plans regarding school security, district-wide school safety plans and building-level school safety plans, as well as information, records, and plans that are related to school security.

6/12/16

Tenn. Code Ann. § 49-6-812. Each LEA shall ensure that the district-wide

safety plans and building-level emergency response plans required by this part are developed in such a manner as to be consistent with the district's harassment and bullying policies developed pursuant to § 49-6-4503.

Tenn. Code Ann. § 49-5-414. Every public elementary and secondary school in this state is

encouraged to have in its employ, or as a volunteer, at least one (1), preferably more, persons who are currently certified by the American Red Cross or another qualified certifying agency approved by the department of education, as qualified to administer emergency first aid and cardiopulmonary resuscitation (CPR). The local board of education is authorized to allocate up to six and one half (6.5) hours a year of in-service days established pursuant to § 49-6-3004 to conduct training programs for teachers and other personnel who have expressed an interest in becoming qualified to administer emergency first aid and CPR.

Tenn. Code Ann. § 68-102-137. (b) Fire drills requiring full evacuation shall be held at least

once a month during the school year, with an additional fire drill to be conducted within the first thirty (30) days of operation in educational occupancies where such occupancies constitute the major occupancy of a building,… A record of all fire drills, including the time and date, shall be kept in the respective school or institutional offices, and shall be made available upon request to the state fire marshal, or the state fire marshal's deputies or assistants, for inspection and review.

6/12/16

Tenn. Code Ann. § 68-102-137. (c) In educational occupancies, fire drills shall include complete evacuation of all persons from the building. In institutional occupancies, fire drills shall be conducted to familiarize operating personnel with their assigned position of emergency duty. Complete evacuation of occupants from the building at the time of the fire drill shall be required only where it is practicable and does not involve moving or disturbing persons under medical care.

Tenn. Code Ann. § 68-102-137. (f) In addition to the fire drills required by this section in educational occupancies, safety drills not requiring full evacuation of all persons from the building shall be conducted at least three (3) times during each school year. A record of all safety drills, including the time and date, shall be kept in the respective school offices, and shall be made available upon request to the state fire marshal, or the state fire marshal's deputies or assistants for inspection and review.

Tenn. Comp. R. & Reg. 0520-01-03-.03 (18) Emergency Preparedness Plans. (a) Each local school system shall have a disaster preparedness plan to include, but not be limited to, fire, tornado, earthquake, flood, bomb threat, and armed intrusion. (b) Each school shall practice emergency safety procedures.

6/12/16

Tenn. Comp. R. & Reg. 0520-01-03-.03 (continued)

(c) Each local education agency having jurisdiction that lies entirely or partially within 100 miles of the New Madrid Fault Line shall implement earthquake preparedness drills in each of the schools administered by such local education agency….

Tenn. Comp. R. & Reg. 0520-01-03-.03 (continued)

(d) Each school administered by a local education agency having jurisdiction that lies entirely or partially within 100 miles of the New Madrid Fault Line shall conduct at least two earthquake preparedness drills every school year. A record of the earthquake preparedness drills, including the time and date, shall be kept in the respective schools and shall be made available upon request by the Department of Education.

State Board of Education Policies 2.300 School Safety Policy 2.301 Two-way Communication Devices 2.304 Earthquake Plan

6/12/16 Â

ttp://www.tennessee.gov/assets/entities/education/attachments/save_act_emergency_ops_planning_model.pdf

http://www.tnschoolsprepare.com/

7 Â

6/12/16 Â

http://www.fema.gov/media-library-data/ 1443799615171-2aae90be55041740f97e8532fc680d40/ National_Preparedness_Goal_2nd_Edition.pdf

http://www.fema.gov/media-library-data/20130726-1922-25045-3850/rems_k_12_guide.pdf

https://www.tn.gov/assets/entities/education/attachments/safe_sch_multihazard_planning_for_schools.pdf

8 Â

6/12/16

http://neahealthyfutures.org/wp-content/uploads/2015/05/schoolcrisisguide.pdf

Commercial Materials Such as….

6/12/16

BEFORE CRISIS • Create a culture of concern. • Use the standardized system and vocabulary of the National Incident Management System. • Develop relationships with community partners.

BEFORE CRISIS • Develop a clear crisis communication plan that is aligned with your school and district plans. • Ensure that your CCP is based on your crisis communication goals and core values. • Ensure that your plan is aligned with other community agencies.

BEFORE CRISIS •  Appoint a crisis communication team, including one or more spokespersons. •  Communicate necessary components of your plan to stakeholders. •  Develop procedures for communicating with critical stakeholders during the crisis.

6/12/16

BEFORE CRISIS •  Plan for communicating with individuals with disabilities, English language learners and other special populations as well as “displaced” students. •  Understand that notification is not communication. •  Plan alternative communication methods and devices.

BEFORE CRISIS • Test communication systems and equipment on a regular basis. • Provide critical information in advance to emergency responders. • Garner community support for security enhancements.

BEFORE CRISIS • Reinforce the importance of preparedness throughout the school year. • Maintain up-to-date contact information. • Designate and prepare a communications center.

6/12/16

BEFORE CRISIS • Prepare for the impact of social media. • Prepare for partnering with the media. • Study effective communication techniques for crisis situations.

BEFORE CRISIS • Develop fact sheets and communications templates. • Prepare helpful phrases, responses in advance. • Consider a "dark web site" and/or a "stealth blog“.

BEFORE CRISIS •  Plan signals when regular communication channels are not available. •  Prepare students, staff and other stakeholders for media inquiries. •  Identify “back-ups”. •  Train, train, train.

6/12/16

DURING CRISIS • Implement your plan with fidelity. • Use plain talk. • When giving instructions, ask for them to be repeated. • Communicate with the most critical stakeholders first.

DURING CRISIS •  Understand that communication needs shift as the crisis continues and abates. •  If you can't release information, explain why. •  Communicate confidential student information only to the extent required by the health or safety emergency.

DURING CRISIS • Be first. • Be accurate. • Be consistent. • Be truthful. • Be concise. • Be clear. • Be credible.

6/12/16

DURING CRISIS • Show compassion and empathy. • Provide self-help information. • Remember that bad news never improves with age.

DURING CRISIS • Designate and prepare a media operations center. • Plan and prepare carefully for media interactions. • Be aware of body language, eye contact, tone, "sound bites", attitude….

DURING CRISIS •  Monitor and inform the crisis manager of what stakeholders and the public are saying. •  Listen...and then show that you have. •  Don't forget government agencies, insurers or others to whom you must or should report.

6/12/16

AFTER CRISIS •  Communicate compassion and empathy, but be careful that memorials do not re-traumatize. •  Inform parents of ways in which their children may react and ways to help their children. •  Inform stakeholders of school, district or community resources from which they might receive counseling or other assistance.

AFTER CRISIS •  Discuss the successes and failures of your communication plan and update it accordingly. •  Consult your stakeholders for their insight about improving your plan. •  Say thank you.

Debra D. Owen

Jackson, Shields, Yeiser & Holt 262 German Oak Drive Memphis, Tennessee 38018 dowen@jsyc.com Phone: 901-754-8001 Fax: 901-754-8524 jsylawfirm.com This presentation provides a general overview of the law and does not constitute legal advice. Receipt of this training and/or these training materials does not create an attorney-client relationship. Contact your attorney to discuss the specific facts of your situation or question.

IS STUDENT SPEECH FREE CHRISTY BALLARD GENERAL COUNSEL, TENNESSEE DEPARTMENT OF EDUCATION

6/12/16

Student Discipline In 2016 Christy Ballard, General Counsel Christy.Ballard@Tn.gov

Basis for Authority to Discipline –  Discipline Policies & Codes –  TCA §49-6-4012-§49-6-4017 •  Board shall formulate a code of acceptable behavior and discipline to apply to all students •  Codes shall contain behavior expected and consequences of failure to obey •  Codes must be applied uniformly and fairly without partiality or discrimination •  Codes shall be posted at each school and referenced in student handbooks and given to school counselors, teachers, administrative staff and parents

Discipline Policies & Codes •  Does your policy manual include all policies required by law? –  Corporal Punishment –  Hazing –  Bullying & Harassment

•  How often are your policies reviewed? •  Policies must give adequate notice of prohibited conduct but not be too limiting •  Policies must be applied equitably and uniformly •  Policies must serve a legitimate educational purpose: –  Safety –  Order –  Suppression of lewd or vulgar speech

6/12/16

Graduation Bans •  May 23, 2016 - Louisiana Valedictorian Banned From Graduation For Refusing To Shave The Beard He Wore All Year –  Ban on facial hair was not enforced during school year? –  Students at other district schools were able to march with beards?

Graduation Bans •  Senior Prank or Vandalism? •  Dozens of Central Texas students were punished after a senior prank went too far. •  According to students, the plan was to fill the school with balloons, streamers and confetti. The prank was supposed to stop there, but more items were added to the mix like rice and flower. •  One student stated: "The syrup, I understand, that took it too far. It was too far." •  The letter sent home to students said their options were to do one of the following: –  –  –  –

pay $75 and complete 10 hours community service pay $150 complete 20 hours of community service not walk at graduation

Over the Top Prom Proposals •  There have always been disciplinary issues related to prom. –  Who may attend? –  What can students wear? –  What is inappropriate behavior at prom?

•  Now students are getting creative with proposals!

6/12/16

Student on a Horse A high school student in Milpitas, California scored himself a prom date with a crea8ve proposal that also got him suspended for two days. He borrowed a horse from a friend's ranch and saddled up before moseying down to campus with a sign in hand ready to ask a girl to the dance. h(p://www.cbsnews.com/news/ california-‐student-‐rides-‐horse-‐to-‐ school-‐in-‐crea=ve-‐prom-‐proposal-‐gets-‐ suspended/\

Student was “The Bomb”

A Washington state student donned a fake bomb vest to issue a prom proposal and received a ﬁve-‐day suspension for his ac=ons including prohibi=on from a(ending prom. He created the simulated device from a paint ball jacket and red tubes. Along with the vest he carried a sign that read: “I know it’s a li.le late, but I’m kinda the bomb, Rilea will u be my date to prom?”

Student was “The Bomb” (cont.) •  He created the simulated device from a paint ball jacket and red tubes. Along with the vest he carried a sign that read: –  “I know it’s a little late, but I’m kinda the bomb, Rilea will u be my date to prom?”

•  Student said people in the cafeteria understood what was going on. ... –  “I had a friend help me make the posters. Teachers even saw me make the posters.”

6/12/16

Student was “The Bomb” (cont.) •  The student was born in Seattle and is of middle eastern background. Asked whether he understood why his actions could be viewed with particular sensitivity given the current climate, he replied: –  “Well, wouldn’t that just be fueling, like, the stereotypes?” –  “Being a Middle Eastern child, you’re growing up with all these bomb jokes. It’s kind of like it’s always a thing that’s there but ... the people that were there, they understood the situation," he added. –  “What they said I did was I disrupted the learning environment of the study body. It was during lunch, so.”

Student was “The Bomb” (cont.) •  The school district’s superintendent said the punishment was warranted. •  “I want all my kids to feel safe and supported, but there’s a line,” Mansell told the newspaper. Given the way the world is today and school safety, even if one parent or one student was upset about this, it causes issues.” •  http://abcnews.go.com/News/teen-suspended-fake-bombvest-prom-proposal-stands/story?id=30544375

Social Media & Student Discipline •  Teens Suspended Over Airsoft Homecoming Photo On Facebook (Captioned “Homecoming 2014”)

6/12/16

Social Media & School Discipline: 1.  Freedom of speech (1st Amendment) 2.  On campus vs. off campus 3.  Freedom from unreasonable search and seizure (4th Amendment) 4.  Potential criminal acts and legal reporting obligations 5.  Bullying & harassment

On Campus Electronic Speech

•

Schools have more clear legal authority to restrict speech or expression that takes place on campus or at school-sponsored events. Schools can also punish students who use school equipment under acceptable use policies.

Off Campus Electronic Speech (cont.) •  Most speech arising out of new technologies occurs off campus. •  It is much more difficult to restrict or punish student expression that takes place away from school or schoolsponsored events. •  Student Internet speech issues are not settled. SCOTUS has not yet addressed the matter.

6/12/16

The First Amendment & Student Use of Social Media

What We Know •  Students will continue using their own personal devices to post potentially disparaging, offensive or threatening messages and images about fellow students, teachers and school officials on social media platforms: –  Facebook, Twitter, YouTube, Vine, Instagram, Snapchat, etc.

•  Schools have more legal authority to punish students for speech when it occurs within the school house gates.

Question of the Day

When may school officials punish students for speech that occurs outside of the school house gates?

6/12/16

Has SCOTUS Spoken on Student Speech?

Student Speech / Expression 1.  Tinker v. Des Moines Ind. Sch. Dist. (1969)

ü  Students wearing armbands to school in protest of the Vietnam War ü  Holding: School officials cannot censor student expression unless they reasonably forecast the student expression will create a substantial disruption of school activities or invade the rights of others.

Student Speech / Expression (cont.) 2.  Bethel School Dist. v. Fraser (1986)

ü  Student gave a speech at a school assembly nominating a friend for student office; speech used graphic sexual metaphors ü  Holding: School officials may regulate on-campus student speech that is vulgar, lewd or plainly offensive.

6/12/16

Student Speech / Expression (cont.) 3.  Hazelwood School Dist. v. Kuhlmeier (1988)

ü  Students wrote articles in school paper relating to teen pregnancy and divorce. ü  Holding: School officials may regulate school-sponsored student speech if they have a legitimate educational reason for doing so.

Student Speech / Expression (cont.) 4.  Morse v. Frederick (2007) ü  “Bong

Hits 4 Jesus” case

ü  Student displayed a banner on a public street across from the school during a Winter Olympics torch relay. ü  Holding: School officials may punish students for expression that promotes illegal drug use.

Student Speech / Expression (cont.) Also Note: True threats – Watts v. U.S. (1969) ü  True threats are never protected speech and students may be punished for such expression.

6/12/16

SCOTUS on Social Media Outside the School Setting •  Elonis v. United States. – (Decided June 2015) •  This decision made it harder to prosecute people for threats made on Facebook and other social media. •  It reversed the conviction of a Pennsylvania man who directed brutally violent language against his estranged wife on Facebook. •  Mr. Elonis, a Pennsylvania man who had adopted the rap persona Tone Dougie, was sentenced to three years and eight months in prison for threatening his estranged wife by posting violent rap lyrics to Facebook in violation of a law prohibiting the communication of threats.

SCOTUS on Social Media Outside the School Setting (cont.) •  Elonis v. United States - SCOTUS decided case on statutory grounds without reaching the First Amendment issues. •  SCOTUS found that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under the federal law. •  SCOTUS held that prosecutors did not do enough to prove Anthony Elonis’s intent when he published threatening lyrics on Facebook directed at his wife. This is the first time the Court has heard a case considering true threats and the limits of speech on social media. •

SCOTUS - Cert. Denied •  Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) –  A student at a high school in Connecticut was barred from the student government after she called the superintendent and other school officials "douchebags" in a blog post written while offcampus that encouraged students to call an administrator and "piss her off more". –  The Second Circuit Court of Appeals held that the district judge did not abuse his discretion in holding that the student's speech "foreseeably create[d] a risk of substantial disruption within the school environment," which is the precedent in the Second Circuit for when schools may regulate off-campus speech. –  On October 31, 2011, SCOTUS declined to grant certiorari on Ms. Doninger's appeal.

6/12/16

Bradford v. Norwich City School District •  September 22, 2014 - United States District Court for the Northern District of New York ruled in favor of the school district for its actions of disciplining a student for off campus text messages which he had been sent to another student and which threatened to harm a third student. •  Despite the parents’ claims that their child had a First Amendment right to correspond in such a manner, the court found (1) there was a foreseeable risk that the speech would come to the attention of school officials, and (2) there was a foreseeable risk that it would materially and substantially disrupt the work and discipline of the school.

Burge v. Colton School District 53 •  April 2015 – A federal district court in Oregon considered a case in which an eighth grader was suspended from his school based upon out-of-school comments he posted on his personal Facebook page. •  The student was angry with his health teacher, Veronica Bouck, after she gave him a “C” in her class. Burge posted a series of derogatory comments about Bouck on his Facebook page. The comments culminated with Burge saying, “Ya haha she needs to be shot.”

Burge v. Colton School District 53 •  Burge’s mother monitors his Facebook page on a daily basis and within twenty-four hours instructed Braeden to delete the entire post. His post could only be viewed by those confirmed as “friends,” which did not include School District staff. •  Burge argued that: –  He did not intend for Bouck to see his comments –  He did not intend to threaten or otherwise communicate with Ms. Bouck; and –  He did not seriously believe that Ms. Bouck should be shot.

•  About six weeks later, the parent of another student anonymously placed a printout of Braeden’s Facebook post in the school mailbox of the principal. •  The principal called Burge to her office where she questioned him, showed him the applicable school policies, and gave him a three-and-one-half day in-school suspension.

6/12/16

Burge v. Colton School District 53 (cont.) •  The court concluded that Burge’s comments did not raise a serious threat of violence and merely caused personal offense and discomfort, but did not rise to the level of substantial disruption under Tinker.

Can You Discipline Students for Posting a Public Record? •  Tennessee students suspended for posting teacher's mug shot to Instagram – Memphis, April 01, 2015. •  Three Tennessee middle school students were suspended after posting their teacher's mug shot on Instagram. •  School official: –  “The reason they received disciplinary action was not because they were sharing the image on social media. The reason was because they were using district computers -- not personal cell phones -- to access inappropriate websites and content not related to the lessons that day."

Sagehorn v. Independent School District No. 728 (D.Minn. Aug. 11, 2015) •  A federal district court in Minnesota ruled that a high school student stated a valid claim for violation of his First Amendment free speech rights against the school district based on school officials disciplining him for an online comment he posted off-campus about a teacher. •  The student, now in college, was suspended for replying to an online question about whether the then 17-year-old “made out” with a teacher with the answer “actually, yeah.” •  Sagehorn, who was captain of the basketball team, was suspended for violating school policy against "threatening, intimidating or assault of a teacher, administrator or other staff member."

6/12/16

Sagehorn v. Independent School District No. 728 (D.Minn. Aug. 11, 2015) – cont. •  According to Sagehorn’s attorney: –  He was threatened with expulsion and forced to transfer schools months before graduation. –  He admitted the post was a mistake and tried to apologize to the teacher, but he was suspended anyway. •  According to his attorney, Sagehorn recently settled the case with the school district for $425,000.

Bell v. Itawamba County School Board •  Petition for certiorari denied on February 29, 2016. •  In August 2010, Taylor Bell — then a senior at Itawamba Agricultural School — composed, sang and posted a rap song about two coaches at his school. •  He disseminated it to more than 1,300 friends on Facebook and posted it on YouTube. •  The song accused the coaches of improper contact with female students and featured lyrics such as “looking down girls’ shirts / drool running down your mouth / messing with wrong one / going to get a pistol down your mouth.”

Bell v. Itawamba County School Board (cont.)

•  After learning of the song, school officials removed Bell from class in January 2011. The principal and others accused Bell of making threats and false allegations. Bell denied that his lyrics were threats and contended his statements about the coaches were true. •  A week later, school officials suspended Bell indefinitely. A disciplinary committee concluded that Bell should be suspended for seven days and then placed in alternative school for five weeks. The Itawamba School Board approved this punishment on Feb. 7, 2011. •  On Feb. 14, 2011, Taylor’s mother, Dora Bell, filed a lawsuit on behalf of her son and herself. She contended that school officials violated Taylor’s First Amendment rights and her 14th Amendment due-process rights in infringing upon her liberty in rearing her child.

6/12/16

Bell v. Itawamba County School Board (cont.) •  Bell claimed the school’s actions violated his right to free speech. The U.S. District Court for the Northern District of Mississippi disagreed and granted summary judgment for the school. •  The Fifth Circuit Court of Appeals affirmed the District Court decision. •  Bell filed a petition for the SCOTUS to hear his case. •  Petition for certiorari was denied on February 29, 2016.

Bell v. Itawamba County School Board (cont.)

•  From an amicus brief filed by the Student Press Law Center and FIRE:

–  “Petitioner’s speech was clearly on a matter of public importance – that of inappropriate behavior by coaches with students. Speech addressing matters of public importance does not lose its constitutional protection because it is insulting or profane. If Taylor Bell was a more traditional commentator using a more traditional method – i.e., a pamphlet of political cartoons – to make the same point using comparably crude language, it would be readily recognized as absurd for a school to assert punitive authority over his off-campus pamphleteering on the same terms as on-campus speech merely because he was speaking about, and attempting to bring about change within, the school.” –  “Allowing schools to use the Tinker standard to shut down offcampus speech, including social media, could effectively silence students who want to raise awareness of what goes on within school walls and hours.”

Off Campus Online Speech •  Online speech targeting schools or school officials –  School officials must be thick skinned because courts are not concerned about hurt feelings caused by off campus student speech. –  Courts are less deferential to the speech rights of students if there is a threat to physical safety to children or school officials.

•  Online speech targeting students –  This off campus speech is the most troublesome for school officials. Cyber-bullying is a real problem. –  School officials must balance their involvement in off campus student speech directed at students. –  Too much monitoring and action by school officials regarding student use of social media exposes them to First Amendment claims, too little exposes school officials to Title IX, equal protection, and other claims for remaining deliberately indifferent to peer harassment.

6/12/16

What Do We Know? •  There is a legal argument that off-campus expression can, and in certain cases, should be punished by school officials if the Tinker test is met. •  Before you discipline for off-campus speech, make sure there is a logical nexus between the off-campus expression and a substantial disruption to the educational environment. •  Remember, Tinker also stands for the premise that speech (presumably on or off campus) can be regulated if it “invades the rights of others.”

Final Recommendations •  Don’t respond with a knee-jerk reaction and censor speech just because you don’t like it. •  Have clear lines of communication with students and parents. •  Educate students about the dangers of online material. •  Adopt, distribute and publicize policies that define prohibited conduct.

Final Recommendations (cont.)

•  Put students and parents on notice that off-campus conduct/speech can be punished. •  Incorporate off-campus conduct into your anti-bullying/harassment policy. •  Determine if police need to be informed.

6/12/16 Â

These materials are not intended as legal advice, and should not be so construed. Law, local policy, and unique facts make dramatic differences in analyzing any situation. Consult your LEA attorney for legal advice regarding a specific situation.

Districts and schools in Tennessee will exemplify excellence and equity such that all students are equipped with the knowledge and skills to successfully embark on their chosen path in life. Excellence | Optimism | Judgment | Courage | Teamwork

15 Â

EQUAL ACCESS & LIMITED PUBLIC FORUM JENNIFER WHITE TSBA ASSISTANT DIRECTOR OF POLICY SERVICES AND STAFF ATTORNEY

6/12/16

Roadmap I.

Constitutional Framework

II.  The Equal Access Act III.  State Case Studies IV.  Q & A

Constitutional Framework s  The Establishment Clause generally requires that public schools remain neutral in matters of religion (“Congress shall make no law respecting an establishment of religion”). s  The Free Exercise Clause generally protects the expression of religious beliefs and participation in religious practices (“Congress shall make no law…prohibiting the free exercise” of religion). s  The Free Speech Clause generally guarantees the right of students to engage in freedom of expression (“Congress shall make no law…abridging the freedom of speech).

6/12/16

The Establishment Clause & Religious Neutrality s  The Supreme Court has employed the following tests to determine whether or not the Establishment Clause has been violated: s  “Secular Purpose”: In Lemon v. Kurtzman, the Court examined whether the challenged practice: (1) served a secular purpose; (2) whether it had the primary eﬀect of advancing or inhibiting religion; and (3) whether it fostered “excessive entanglement” with religion.

The Establishment Clause & Religious Neutrality s  “Coercion”: In Lee v. Weisman, a case involving prayer by a clergyman at the middle school graduation, the Court examined whether the prayer compelled student participation in a religious exercise. s  “Endorsement”: In Santa Fe Independent School District v. Doe, which involved a student-‐led prayer at a high school football game, the Court examined whether the challenged practice conveyed an endorsement of religion by the school.

The Free Exercise Clause s  This clause is invoked when: (1) the government seeks to limit an activity that an individual claims is necessary for him/her to fulﬁl a religious obligation; or (2) the government compels an activity that an individual believes is in violation his/her religion. s  Examples s  Requirements s  Pledge of Allegiance in schools s  Language on license plates

s  Prohibitions s  Polygamy s  Animal sacriﬁce s  Smoking peyote

6/12/16

Free Speech Clause s  Students often assert religious expression claims as free speech claims. The argument in such cases is that religious speech is a “viewpoint” that is entitled to the same protection as non-‐religious speech. s  The following cases helped establish the framework for analyzing free speech claims at the K-‐12 level.

Free Speech Clause s  Tinker v. Des Moines Indep. Community School Dist. s  This case upheld the right of high school students to wear black armbands to protest the Vietnam War. The Court held that schools may not restrict student speech unless the speech creates or is likely to create a “material” and “substantial” disruption at school.

s  Bethel School Dist. v. Fraser s  The Court upheld the regulation prohibiting lewd speech by a student at a school assembly. The rationale here was that the authority to regulate lewd speech served the basic educational mission of the schools.

Free Speech Clause s  Hazelwood School District v. Kuhlmeier s  The Court upheld the right of school administrators to control the content of a curriculum-‐based school newspaper. Administrators had the authority to regulate school-‐sponsored publications since they, in eﬀect, are speaking on behalf of the school.

s  Morse v. Frederick (the bong hits for Jesus case) s  In 2002, a student unfurled a banner that read “Bong Hits 4 Jesus” on a school outing to see the Olympic torch pass by. The Court held that the First Amendment does not prohibit school administrators from disciplining a student for promoting illegal drug use.

6/12/16

The Equal Access Act s  In 1984, Congress passed the Equal Access Act. s  This law protects Christian groups that want to meet on campus, as well as other groups, from viewpoint based discrimination. s  The relevant language of this law states, “It shall be unlawful for any public secondary school which receives federal ﬁnancial assistance and which has a limited open forum to deny equal access … on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

What is a “limited public forum”? s  Public Forum s  A public forum is government owned property that is open to public expression and assembly. s  Sidewalks and parks are classic examples of public forums.

s  Limited Public Forum s  A limited public forum is government owned property that may be opened by policy or practice to speech. s  Classic examples include meetings spaces in public schools and libraries.

What types of restrictions may be imposed on a limited pubic forum? s  Time, place, and manner restrictions s  For the government to regulate speech in a limited public forum, the regulation must be: s  Content-‐neutral; s  Reasonable time, place and manner restriction; and s  Must leave open alternative channels of communication.

s  Examples: s  Limiting the times the space is available for use s  Noise restrictions s  Prohibiting the consumption of alcohol on school premises

6/12/16

What types of restrictions may NOT be imposed on a limited pubic forum?

s  Viewpoint discrimination

s  Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government oﬃcial who permitted ‘‘pro-‐life’’ proponents to speak on government property but banned ‘‘pro-‐choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Courts may also describe this constitutional requirement by saying that government laws and decisions must be ‘‘viewpoint neutral.’’

The Equal Access Act s  Student meetings may not be sponsored. s  School Personnel may not be present in any capacity other than a “nonparticipatory” one. s  Nonschool persons may not direct, conduct, or control regularly attend activities of student groups. s  Sease v. Sch. Dist. Of Philadelphia s  Where a school gospel choir was led by the school secretary, the school properly refused to allow the choir use of its building under the Equal Access Act.

The Equal Access Act s  Board of Education of Westside Community Schools v. Mergens s  Facts of the case: s  In this case, a group of students sued when their request to form an after-‐school Christian club was denied. s  The district denied the club’s request to be recognized and meet on school property because it lacked a faculty sponsor as well as on Establishment Clause grounds. s  The students argued that the school district’s decision was in violation of the EAA.

6/12/16

The Equal Access Act s  Outcome of Board of Education of Westside Community Schools v. Mergens s  The Court held that the EAA required the Bible study group to be allowed access to school facilities if the district allowed other student groups to meet on school premises. s  The Court distinguished between “curriculum” and “non-‐ curriculum student groups.” s  The proposed Christian club would be a noncurriculum group since no other course required students to become its members, its subject matter would not actually be taught in classes, it did not concern the school's cumulative body of courses, and its members would not receive academic credit for their participation. Based on this analysis, the Court found no violation of the Establishment Clause.

The Equal Access Act s  Outcome of Board of Education of Westside Community Schools v. Mergens s  The Court added that the Equal Access Act was constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, or other types of speech. s  As such, the Act protected the Christian club's formation even if its members engaged in religious discussions.

How does this practically apply to student clubs? s  An important 6th Circuit case, Boyd County High School Gay Straight Alliance v. Board of Ed., involved banning a student group based on the group’s message. s  The court held that excluding clubs based on viewpoint would violate the First Amendment. s  “Any word spoken in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that this is the sort of hazardous freedom—this kind of openness—that is the basis of our national strength…”

6/12/16

How does this practically apply to student clubs? s  The court held that the board could ban all clubs that were not curriculum based. This included: s  National Honor Society; s  Student government; s  Beta club; s  Drama club; and s  Fellowship of Christian Athletes/Bible Club.

s  However, if the board wanted to keep non-‐curricular clubs, the court held that they would have to approve clubs despite the fact that some board members might not agree with the message of the club.

How does this practically apply to student clubs? s  The court went on to note that a club can be banned if it “substantially interferes with the school’s ability to maintain order and discipline.” s  However, that is a high threshold. Despite passionate outcry and protests over the student club, the court held that school oﬃcials maintained the educational environment at the high school and there was no interference (i.e. “regularly scheduled classroom activities were not altered in any way.”)

Equal Access & Community Groups s  In some schools, students attend after-‐school activities led by outside community groups and adults, such as the Boy Scouts. s  Schools that permit outside groups to use school facilities cannot discriminate on the basis of viewpoint. s  Religious groups are entitled to the same access provided to groups that do not espouse a religious viewpoint.

6/12/16

Equal Access & Community Groups s  Good News Club v. Milford Central School s  Facts of the case: A couple applied to use public school property, after hours, for meetings of the Good News Club. These meetings would be geared toward children and involve Bible lessons and singing Christian songs. The school denied the request because school administrators decided that the activities “were in fact the equivalent of religious instruction itself.” The couple ﬁled suit. They claimed they were being discriminated against based on the religious content of their meetings.

Equal Access & Community Groups s  Good News Club v. Milford Central School s  Outcome: The Supreme Court held that the group could not be excluded from using school property simply because it wished to convey a religious message. s  A school may limit how its property is used (i.e., place limits on days and times when the space is available). It may not, however, exclude speakers from a religious group simply because they intend to express religious views.

So where does that leave us? s  The board can restrict the types of clubs that can meet on school property. s  However, it cannot refuse to approve a club based on the content of the clubs message. s  Example, allowing a “Students for Hillary” club, but refusing to allow a “Students for Donald Trump” club.

s  The type of restriction the board may impose would be to get rid of all clubs that are not curriculum based.

6/12/16

Questions?

CASE UPDATE

RANDALL BENNETT TSBA DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

06/07/2016

CASE UPDATE 2016

Summer Law Institute - Jackson

C.E.F. V. CLEVELAND METRO SCHOOL DISTRICT Child Evangelist Fellowship (CEF) appealed the denial of a motion for a preliminary injunction against Cleveland Schools District refused to waive fees assessed to CEF for use of school’s facilities (Community Use Policy stated that the District would impose a “reasonable fee” for the use of its facilities CEF learned that the District waived fees for the Boy Scouts and denied CEF’s request for a fee waiver CEF sued and alleged that the District had an unwritten policy allowing principals to waive fees at their discretion and that the preferential fee waiver amounted to a violation of the 1st and 14th Amendments.

SLQ Handout P. 1-2

C.E.F. V. CLEVELAND METRO SCHOOL DISTRICT The District argued that it had agreed to accept goods or services as in-kind payment when requested by the group and that CEF had never proposed such an arrangement The Sixth Circuit Court of Appeals found that CEF’s evidence did not adequately show that the District had a fee-waiver policy and concluded that the record showed that the Scouts provided consideration in excess of their assessed fees and affirmed the ruling of the District Court Take-Away: If you waive fees make sure that every one affected is treated equally

SLQ Handout P. 1-2

06/07/2016

GELLER V. HENRY COUNTY BOARD After 20+ years Geller was removed from an assistant principal position and transferred to a teaching position…he was age 64 at the time and alleged discrimination In 2009 Tennessee changed the rules for administrative positions…if an administrator spent more than 50% of their time involved in instructional leadership they must be licensed administrators Geller was aware but did not apply… in 2012 he submitted an application for an upgraded license but was denied by the state Director of schools chose not to waive the requirement but attempted to find Geller a suitable position

SLQ Handout P. 2-3

GELLER V. HENRY COUNTY BOARD Geller’s replacement as assistant principal was 39 years old and Geller ultimately brought a suit in federal district court alleging age discrimination The Board moved for summary judgment and the motion was granted by the district court. Geller appealed. The 6th Circuit stated that nearly all of the evidence supported the conclusion that Geller was removed from his post based solely on his failure to apply for and maintain an administrator’s license and that keeping apprised of the licensing requirements as Geller’s responsibility. The 6th Circuit affirmed the district court’s decision

SLQ Handout P. 2-3

SMITH, KUCERA & FORGETY V. JEFFERSON COUNTY BOARD OF EDUCATION Two alternative school teachers brought suit against the district asserting an Establishment Clause violation after the Board eliminated the district alternative school program and contracted with a local religious school (Kingswood) to provide those services Kingswood had a residential program that was religious in character, however the day program utilized by Jefferson County did not but students were not “insulated” from the school’s religious environment due to notices, documents and report cards containing scripture The district court enjoined the Board from contracting with Kingswood or other religious entities and also awarded plaintiffs damages for lost wages. The Board appealed SLQ Handout P. 3-4

06/07/2016

SMITH, KUCERA & FORGETY V. JEFFERSON COUNTY BOARD OF EDUCATION The 6th Circuit agreed with the Board’s argument that it had a secular purpose in contracting with Kingswood and found that the district court’s conclusion that the atmosphere was coercive to be clearly erroneous Students were NOT coerced into taking part in religious activity of any kind and classroom activities did not include religious instruction, prayers or moments of reflective silence. The Board chose a high-performing, state certified alternative school and saved significant taxpayer money while ensuring the students received a sound education. The mere status of Kingswood as a religious organization did not give rise to an “endorsement.” The 6th Circuit reversed the district court and vacated the injunction and damages award. SLQ Handout P. 3-4

RUTHERFORD WRESTLING CLUB INC. V. ROBERT ARNOLD, ET. AL. In 1995 a member of the Sheriff’s Office, Mr. Kennedy, established the sheriff’s Athletic Fellowship and enrichment (S.A.F.E.) program which was very successful In 1998 Mr. Kennedy began a wrestling program under the auspices of S.A.F.E. and as the program continued to grow, Kennedy, in his capacity as a member o the Sheriff’s department, applied for and received a federal grant to purchase equipment and insurance. By 2005 the current facilities could no longer support the program so Kennedy sought and obtained permission from the Board, to construct a building on school property funded through donations and funds from the Sheriff’s office. The club also received 501(c)(3) status from the IRS. In 2010 Kennedy resigned from the Sheriff’s Department

SLQ Handout P. 7

RUTHERFORD WRESTLING CLUB INC. V. ROBERT ARNOLD, ET. AL. After the resignation the Sheriff removed the equipment from the building and the Board required the club to submit a “Use of Facilities” form since it was no longer associated with Rutherford County. Kennedy refused and the Direct of Schools denied access. The club filed suit on a number of charges and the trial court ultimately dismissed all claims concluding that the Board owned the building and the sheriff owned the contents. The Tennessee Court of Appeals affirmed finding:  The building was constructed on behalf of the S.A.F.E. program not the wrestling club;  The wrestling club was acting as a booster-club type organization and the building was donated to the school system with title vesting in the Board pursuant to TCA 49-2-2006; and  The personal property was bought under the auspices of the S.A.F.E. program which was administered by the Sheriff’s Department SLQ Handout P. 7

06/07/2016

ATTORNEY GENERAL OPINION NO. 15-58 HOPE SCHOLARSHIP ELIGIBILITY QUESTION:

Are private secondary schools as defined in TCA 49-4-902(10)(B) required to sue the state Uniform Grading Policy as set forth in TCA 49-4-902(41)? [since renumbered to 43]

OPINION:

No. It appears that the Legislature intended that HOPE scholarship eligibility may be determined either through the use of the State uniform grading scale or another grading method that permits a determination of the mathematical equivalence to grades on the uniform scale.

SLQ Handout P. 15

ATTORNEY GENERAL OPINION NO. 15-62 LICENSE FOR PROVIDING CANINE DETECTION SERVICES QUESTION:

Are private entities that provide canine detection services to county high school systems required to be licensed under TCCA 62-26-602 (the Private Investigators Licensing and Regulatory Act)?

OPINION:

Yes. A private entity that contracts to provide canine detection services is acting as an “investigations company” and “private investigator” as defined by code and must be licensed unless otherwise exempt. None of the exemptions set forth in the code is applicable to entities or their employees or independent contractors that provide these services to county high schools.

SLQ Handout P. 16

SUSAN JONES V. KNOX COUNTY BOARD OF EDUCATION This appeal to the Tennessee Court of Appeals concerns a tenured teacher’s legal challenge to her transfer from Instruction Coach to classroom teacher…a transfer she considers a demotion. At the heart of her grievance was her allegation that her evaluations were not taken into account when making the decision to transfer her. Jones sued Knox County alleging that her transfer was arbitrary, capricious, and in violation of TCA 49-5-510 which states:  The director of schools, when necessary to the efficient operation of the school system, may transfer a teacher from one location to another within the school system, or from one type of work to another for which the teacher is qualified and licensed; provided, that transfers shall be acted upon in accordance with board policy.

The trial court found in favor of Knox County dismissing Jones motion. Jones appealed. SLQ Handout P. 19-20

06/07/2016

SUSAN JONES V. KNOX COUNTY BOARD OF EDUCATION The Court of Appeals referenced TCA 49-1-302(d)(2)(A) which states: “The evaluations shall be a factor in employment decisions, including, but not necessarily limited to, promotion, retention, termination, compensation and the attainment of tenure status.” The Court of Appeals held that Jones has alleged facts sufficient to state a claim for relief and if taken as true, Jones allegation that she was transferred arbitrarily without any consideration of her evaluation results could warrant relief. Ultimately the Court held that the trial Court applied the wrong standard in deciding Defendants’ motion to dismiss and while taking no position on the outcome remanded the case back to the Trial Court for further proceedings.

SLQ Handout P. 19-20

SEIU V. METRO NASHVILLE BOE In July of 2000 Metro Nashville adopted a Labor Negotiations Policy (LNP) which gave non-licensed employees the right to collectively bargain and the director regularly met with and negotiated contracts with the union the last of which expired in 2011 The director did not meet with SEIU to discuss a new contact after June 30, 2011 and permitted employees to stop automatic withdrawal of dues from paychecks and ceased to recognize SEIU as the exclusive representatives of employees In December the Director sent a letter to SEIU stating that the executive staff had met and voted to rescind the LNP…the Director also notified the board on the same date SEIU filed a complaint with the Board asking them to confirm SEIU’s status and direct the Director to comply with the LNP…the Chairman responded indicating that the complaint was without merit and should proceed no further SLQ Handout P. 21-23

SEIU V. METRO NASHVILLE BOE SEIU file a complaint in Davidson County Chancery Court as did the district and both moved for summary judgment on the pleadings and the court granted SEIU’s motion ruling in part that TCA 49-2-301 did not give the Director the authority to abrogate the LNP and that the LNP was still in effect The Board appealed alleging that the Trial Court erred in granting summary judgment in favor of SEIU The key portions of the law at issue, modified in 2011, states that the director has the authority to “employ, transfer, suspend, non-renew all personnel..” and that “all persons who are employed in a position for which no teaching license is required shall be hired at the will of the director of schools.”

SLQ Handout P. 21-23

06/07/2016

SEIU V. METRO NASHVILLE BOE The Court concluded that the LNP was abrogated by the amendments to the law that gave the director authority over the types of employment condition on which the SEIU wished to negotiate The Court found that the director was properly exercising the authority granted to him by law when he exercised his discretion to not follow the procedures in the LNP The Court reversed the trial court’s grant of summary judgment and remanded the case to the Chancery Court for any further proceedings necessary

SLQ Handout P. 21-23

HCEA V. HAMILTON COUNTY BOE This case revolves around a letter written by the administration which contained the following language:  “this conduct would either result in an official request for a retraction of such statements or in clarification/correction of these statement by the district.”

HCEA was working very hard to convince principals to continue their membership in HCEA even though principals and other administrators would no longer be a part of the “bargaining unit” after the implementation of PECCA HCEA sued citing both EPNA and PECCA in Federal District Court and the Court found for the Board The 6th Circuit affirmed stating that “the Board’s letter did not significantly burden HCEA’s right to expressive association, the district court correctly granted summary judgment SLQ Handout P. 29

STILES V. GRANGER COUNTY This case involved a student who filed suit in federal district court against Grainger County Schools and the Rutledge Police Department alleging for multiple claims of bullying against the student and allegations that the defendants did nothing to protect the rights of those students The District court found that the Plaintiffs could now show that the Defendants acted with “deliberate indifference” nor could they establish a §1983 equal protection violation because the plaintiffs could not show that there was disparate treatment The 6th Circuit affirmed the district court

SLQ Handout P. 19-20

06/07/2016

ATTORNEY GENERAL OPINION NO. 16-11 CONSTITUTIONAL AMENDMENT-ART. XI, ยง12 QUESTION:

Would the language, if adopted in HJR 493, 109th Gen Assembly 2016, affect the equal protection provisions of article I ยง 8 or article XI ยง 8 of the Tennessee Constitution?

OPINION:

No.

SLQ Handout P. 31

QUESTIONS?

Tennessee

Summer 2015

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators

Table of Contents Volume 15, Issue 2 Pages 1

CEF v. Cleveland Metro Schools

Page 2

Ward v. Knox County BOE

Page 2

Gellar v. Henry County BOE

Page 3

Smith v. Jefferson County Bd. Sch. Comm’r

Page 4

Fry v. Napoleon Comm. Schools

Page 5

Hamilton Cty. Educ. Assoc’n v. Hamilton County BOE

Page 6

Emory v. Shelby County BOE

Page 6

Barkley v. Shelby County BOE

Page 7

Rutherford Wrestling Club v. Arnold

Page 8

Attorney General Opinions

Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metro Sch. Dist., Sixth Circuit Court of Appeals, March 19, 2015 In this First Amendment case, the plaintiff Child Evangelism Fellowship of Ohio, Inc. (“CEF”) appealed the denial of its motion for a preliminary injunction against defendant Cleveland Metropolitan School District (“the District”). This controversy arose out of the District’s refusal to waive fees it assessed to CEF for use of school’s facilities. The District made its facilities available to outside groups through its Community Use Policy. The policy required a permit for any non-district activities and stated that the District would impose a “reasonable fee” for use of the facilities. CEF obtained the permit and sent a letter to the District’s Board of Education requesting a fee waiver. The District’s board denied the request and sent CEF an invoice for the facilities use. After learning that the Boy Scouts used the District’s facilities without paying a monetary fee, CEF renewed its request for a fee waiver which the District denied. CEF sued and alleged that the District had an unwritten policy allowing school principals to waive facilities fees at their discretion, and that the District’s preferential fee waiver for the Boy Scouts amounted to a violation of the First and Fourteenth Amendments. The District denied the allegation and explained that “in limited circumstances [the District] has agreed to accept goods or services as in-kind payment of the Permit Fee, when requested by the group.” The District said it had agreed to such an arrangement with the Boy Scouts. It produced a letter to the Scouts memorializing a “satisfactory accord based upon an exchange of in-kind services.” The District asserted that it does not consider the applicant organization’s viewpoint when evaluating a proposal for an in-kind arrangement. Finally, the District claimed that CEF never proposed an in-kind arrangement in lieu of a monetary fee. Instead, it simply asked the District to waive the fee altogether. The district court denied CEF’s motion for a preliminary injunction. The court found that CEF could not demonstrate a likelihood of success on the merits because the record lacked sufficient evidence to show that “a fee-waiver policy exists, let alone that [the District] operates it in a discriminatory matter.” SLQ Summer Law Handout 1

Tennessee School Law Quarterly The parties agreed that CEF engaged in protected activity and that the District had created a limited public forum. On appeal, CEF renewed its argument that the District maintained an unwritten, discretionary fee-waiver policy that administrators had applied in a discriminatory manner. CEF argued that the District’s actions constituted viewpoint discrimination, content discrimination, and a violation of the Equal Protection Clause. CEF asserted that the District’s refusal to waive CEF’s fees while not charging the Boy Scouts amounted to viewpoint discrimination. The Court of Appeals found that CEF’s evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy. The court concluded that the record at this stage showed that the Scouts provided consideration in excess of their assessed facilities fees, strengthening the District’s argument that its in-kind arrangements do not subsidize speech at all, let alone selectively, and affirmed the district court. http://www.ca6.uscourts.gov/opinions.pdf/15a0220n-06.pdf

Michael S. Ward d/b/a Feredonna Commc’n v. Knox Cnty. Bd. of Educ., Sixth Circuit Court of Appeals, May 11, 2015 Since 1989, Knox County children have sold coupon books as part of an annual fundraising campaign for their county’s schools. Michael Scott Ward and Feredonna Communications (collectively, Feredonna) won the contract to print Knox County’s coupon books in 1994. The relationship between Feredonna and Knox County lasted until 2009, when Knox County switched to another, lower bidder. In 2011, Feredonna filed suit against both the Knox County Board of Education and Knox County, alleging that Knox County’s coupon books infringed on the trademark, trade dress, and copyright of Feredonna’s coupon books. The district court denied Feredonna’s requests for a temporary restraining order and a preliminary injunction, and eventually granted Knox County’s motion for summary judgment. The Court of Appeals affirmed the district court by concluding that the School Coupon mark associated with the book was not entitled to trademark protection. It then opined that the plaintiff ’s trade dress argument failed because the plaintiff could not establish that the disputed trade dress had acquired secondary meaning. The Court also affirmed the district court’s summary judgment on copyright infringement by stating that Feredonna did nothing more than change the style and format of the language submitted by merchants, which the Sixth Circuit has held as not enough to reflect the requisite originality. http://www.ca6.uscourts.gov/opinions.pdf/15a0352n-06.pdf

Stephen P. Geller v. Henry Cnty. Bd. of Educ. Sixth Circuit Court of Appeals, June 1, 2015 Stephen Geller began working for Henry County Schools in 1990. Following the 2011–2012 school year, he was removed from the assistant principal position and transferred to a teaching position. Geller was 64 years of age at the time of this demotion, and claimed that his removal was based on age discrimination. In 2009, the State of Tennessee adopted new rules for the qualification of administrative positions. Beginning in September of that year, personnel with more than fifty percent of their responsibilities involved in instructional leadership were required to be licensed administrators or enrolled in the appropriate licensing program. Geller was aware of the new requirement, but chose not to apply. In the spring of 2012, Geller submitted an application for an upgraded license, despite the fact that he had never earned a license. The State’s licensing authority notified Geller that his application was denied. The Director of Schools chose not waive the requirement, but attempted to find Geller a suitable position that he could

Summer 2015

SLQ Summer Law Handout 2

Page 2 of 10

Tennessee School Law Quarterly fill for the coming year. During a meeting, the Director commented on Geller’s plans for retirement by noting that it was a good thing not to wait too late in life to enjoy oneself, as the Director’s father had done. It was undisputed that Geller could have obtained the needed license prior to the commencement of the new school year. The newly vacant assistant principal position went to Renae Lassiter. She was 39 years old at the time. Geller was offered a teaching position and signed an employment contract accepting his new position. At the bottom of the page he wrote, “I believe I was wrongfully removed as Assistant Principal at Henry County High School and am signing this contract only as a matter of financial necessity.” Prior to receiving Geller’s executed contract that included this message, the Board was unaware that Geller believed his reassignment to be at all wrongful. During two subsequent meetings Geller never suggested that his removal was based on age. Geller submitted a formal complaint to the Board alleging that he was illegally transferred as the result of his age. Geller believed he was being treated in a discriminatory manner because his transfer was inconsistent with his years of experience and his favorable job performance history, and because he was replaced by a woman with very little experience who was 25 years his junior. The complaint was dismissed after the administrative reviewers found no evidence of discrimination and determined that Geller’s transfer was based on his failure to maintain a license. Geller unsuccessfully appealed. Geller then brought a suit in district court. The Board moved for summary judgment, based on the undisputed facts, and also indicating that a number of the school system’s administrators, including the Director, were in the same protected age class as Geller and had not been subject to any adverse employment actions, because they had earned an administrator’s license. The district court granted the Board’s motion and Geller appealed. At the Court of Appeals, Geller did not argue that he had direct evidence of age discrimination so the Court analyzed the evidence under the McDonnell Douglass burden-shifting framework. The parties disputed whether Geller demonstrated a prima facie case of age discrimination. The Court noted that the third element was at issue because Geller could not claim to be qualified since he was required to maintain an administrator’s license and failed to do so. The Court stated that nearly all of the evidence supported the conclusion that Geller was removed from his post based solely on his failure to apply for and maintain an administrator’s license. The Court also opined that Geller was responsible for keeping apprised of the licensing requirements and for maintaining the appropriate license. The Director had engaged Geller to see if he could or would become licensed, and made reasonable attempts to accommodate Geller. The Court agreed that given the facts, no reasonable jury to conclude that Geller was discriminated against on account of his age, let alone that his age was the but-for cause of the adverse employment action. http://www.ca6.uscourts.gov/opinions.pdf/15a0392n-06.pdf

Steve B. Smith, David Kucera, and Vicky Forgety v. Jefferson Cnty. Bd. of Sch. Comm’r, Sixth Circuit Court of Appeals, June 11, 2015 In this action, two alternative school teachers brought a suit against the district, asserting a violation of the Establishment Clause after the district’s Board voted to eliminate the district ran alternative school program and contract with a local religious school, Kingswood, to provide alternative-school services. The Sixth Ciruit had previously ruled that the plaintiff teachers had standing, in their capacity as municipal taxpayers only, to raise the Establishment Clause claim. Kingswood had two separate programs: the day program and the residential program. The residential program served troubled, neglected, and abused children and maintained a religious character and included deliberate religious instruction. The day program, however, did not feature deliberate religious instruction and was the program that Jefferson County students attended. Students were not entirely insulated from the schools religious environment, however, since forms,

Summer 2015

SLQ Summer Law Handout 3

Page 3 of 10

Tennessee School Law Quarterly report cards, school letters, official documents and the school’s website contained scriptures from the Bible. In July 2013, the district court issued its findings and held that the Board had violated the Establishment Clause. The court enjoined the Board “from contracting with Kingswood or another religious entity for the operation of its alternative school.” It also awarded plaintiffs damages for lost wages. On appeal, The Sixth Circuit weaved together the Lemon Test and Justice O’Connor’s Endorsement Analysis from Lynch v. Donnelly, which the Court viewed as a clarification of the Lemon Test. The Court of Appeals agreed that the Board had a secular purpose in contracting with Kingswood. The Court then found the district court’s conclusion that the Kingswood atmosphere was coercive to be clearly erroneous. Students were not coerced into taking part in religious activity of any kind, and classroom activities did not include religious instruction, prayers, or moments of reflective silence. The Court of Appeals then looked at the case from the perspective of a reasonable observer and concluded that the relationship between the Board and Kingswood could not be interpreted as a governmental endorsement of religion. Parents and students encountered only de minimis religious references in Kingswood’s day program. The Board chose a high-performing, statecertified alternative school on short notice to fulfill its obligation. The move saved significant taxpayer money and ensured that the alternative students received a sound education over the course of the seven-year arrangement. The mere status of Kingswood as a religious organization did not itself give rise to an endorsement. As a result, the Court reversed the district court and vacated the injunction and damages award. http://www.ca6.uscourts.gov/opinions.pdf/15a0119p-06.pdf

Fry v. Napoleon Cmty. Sch., Sixth Circuit Court of Appeals, June 12, 2015 Does a student’s wish for greater independence qualify as an educational goal? According to a recent 6th Circuit opinion yes. The Court held that issues relating to the presence of the student’s service dog were crucially linked to her education. The Court ruled that the parents could not pursue Section 504 or Title II claims against a former school district until they exhausted their administrative remedies under IDEA. The majority noted that the exhaustion requirement applies if the IDEA’s Administrative procedures can provide some form of relief or if the claims relate to the provision of FAPE. The parents were disputing the appropriateness of the student’s IDEA services…specifically, they argued the dog’s presence allowed the student to be more independent so that she would not have to rely on a one-to-one aide for tasks such as using the toilet and retrieving dropped items. They also maintained that the student needed the dog in school so that she could form a stronger bond with the animal and feel more confident. The court reasoned that the parents’ allegations brought the claim squarely within the IDEA’s scope. “Developing a bond with the dog that allows the student to function more independently outside the classroom is an educational goal just as learning to read Braille or learning to operate an automated wheelchair would be. “ The Court affirmed the district court’s ruling that the parents’ failure to exhaust their administrative remedies required dismissal of their Section 504 and Title II claims. The panel was split on the decision 2/1. http://www.ca6.uscourts.gov/opinions.pdf/15a0121p-06.pdf

Summer 2015

SLQ Summer Law Handout 4

Page 4 of 10

Tennessee School Law Quarterly Hamilton Cnty. Educ. Ass’n v. Hamilton Cnty. Bd. of Educ., U.S. District Court, Eastern Dist. of Tenn. at Chattanooga, June 9, 2015 What does “dominate, interfere or assist in the administration of any professional employee organization” or “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in § 49-5-603” mean? These questions were at the heart of a complaint filed by the Hamilton County Education Association (HCEA) against the Hamilton County Board of Education (HCBOE) and recently decided by the U. S. District Court, Eastern District of Tennessee at Chattanooga. During the final year of the last EPNA contract with HCEA, there was a concerted effort by the Association to convince principals to continue their membership even though principals and other administrators would no longer be a part of the “bargaining unit” for the purposes of the Professional Educators Collaborative Conferencing Act (PECCA), which replaced the EPNA. When informed of this, Assistant Superintendent for Human Resources Stacy Stewart wrote a letter to Association President Sandra Hughes and stated the following: • •

• •

that the Association could not represent principals or count them among membership totals for the purposes of PECCA that she was concerned regarding other statements made by Association representatives at their September 17 meeting that she worried “could be construed as intimidating” specifically referring to Association claims that, without the Association, teachers could be subjected to ten hour workdays and 100+ page code of conduct documents and could lose medical and retirement benefits she referenced pejorative comments made regarding a competing professional organization; and she closed the letter by citing to the PECCA prohibition on professional organizations attempting to coerce employees. Stewart stated that continuing this conduct would “either result in an official request for a retraction of such statements or in clarification/correction of these statements by the district” (emphasis added).

Based on the letter, HCEA filed the complaint alleging unlawful acts under both EPNA and PECCA as well as a violation of the Association’s First Amendment rights. HCBOE responded by arguing that there was no violation of state or federal law and pointed to its own right in TCA 49-6-606(a)(5) to “express any views of opinions on the subject of employer-employee relations; provided however, that such expression shall contain no threat of reprimand, discharge or promise of benefits.” After pointing out the obvious flaws in the Association’s arguments the Court found the letter did not violate any provisions of the EPNA or PECCA because if falls squarely within the protective space afforded to the Board in the law referenced in the previous paragraph. Additionally the Court found that the letter did not burden the Association’s right to expressive Association and found for the district on the First Amendment violation claim granting summary judgment to the district on both claims. (This decision was emailed to the TCSBA listserv on Wednesday June 10).

Summer 2015

SLQ Summer Law Handout 5

Page 5 of 10

Tennessee School Law Quarterly Rogelynn Emory v. Memphis City Sch. Bd. of Educ., now known as Shelby Cnty. Bd. of Educ., Tennessee Court of Appeals, April 29, 2015 This case was an appeal brought under the Tennessee Teacher Tenure Act in effect during 2005 and 2006 when the events in question occurred. As a tenured teacher, the plaintiff was employed by the Memphis City Board of Education. In 2005, the principal of Central High School noted that the plaintiff did not appear to have control of her students and demonstrated low levels of teaching. As a result, the principal recommended, and the superintendent agreed, that the plaintiff should be terminated. In response to her suspension letter, the plaintiff requested a hearing before the Board. The Board acknowledged receipt of the letter on November 11, 2005 but failed to hold a hearing on the charges until November 1, 2006 even though the law required a hearing within 30 days after the demand was made. The Board terminated the plaintiff on November 13, 2006. The plaintiff timely appealed to the chancery court seeking a reversal of the Board’s decision, but no action was taken by the Board until 2011 after the plaintiff filed a motion for default judgment. The trial court held that since the delay did not affect the outcome of the hearing, the Board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. The Court of Appeals reversed the trial court and awarded back pay for the additional days the plaintiff was suspended without pay after determining that the thirty day hearing requirement was directory in nature. The Court then concluded that since the statute was a directive, the Board’s failure to comply did not void the original termination. http://www.tncourts.gov/sites/default/files/emoryrogelynnopn.pdf

Pamela Barkley, et al. v. Shelby Cnty. Bd. of Educ., Tennessee Court of Appeals, March 18, 2015 This case was brought under the Tennessee Governmental Tort Liability Act to recover for injuries sustained in a slip and fall at a school operated by the Shelby County Board of Education. The plaintiff in the case was Pamela Barkley, the grandmother of two children who attended Riverdale Elementary School in Memphis. Ms. Barkley fell in a hallway during the school’s Grandparent’s Day event. The trial court held the school board 60% liable and plaintiff 40% liable. The Board of Education appealed the determination that it was negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault for her injury. The Court of Appeals first set forth the general rule of governmental immunity: “Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.” The Court then turned to a few specific findings of fact made by the trial court: (1) To reach a trash can, Plaintiff walked past a hand washing station that was in the hallway outside the boys’ restroom. (2) Barkley was wearing “crocs” when she slipped and fell in water near the hand washing station. (3) Syndi [sic] Whitaker also stated that she saw water in the area by the boy’s hand washing station and that people had tracked through it. She testified that there is soap available at the hand washing station. (4) Barkley slipped and fell which resulted in her suffering a hip dislocation and required medical treatment and physical therapy. The Court noted that the evidence was conflicting, particularly with respect to whether Ms. Barkley fell on water which was on the floor, or whether the shoes she was wearing caused her to fall and spill a cup she had in her hand. The Court believed that there was no evidence to support a finding that the Board had actual notice of water on the floor sufficient either to remove the board’s immunity or to otherwise establish liability. It stated that the plaintiff presented no proof as to the length of time the water had been present or any other facts upon which to conclude that the Board had constructive notice of the specific condition. The Court stated that general knowledge of such a condition does not constitute constructive knowledge of a specific condition. As a result, there was no basis upon which to hold the School Board liable.

Summer 2015

SLQ Summer Law Handout 6

Page 6 of 10

Tennessee School Law Quarterly http://www.tncourts.gov/sites/default/files/barkleypamelaopn.pdf

Rutherford Wrestling Club, Inc. v. Robert Arnold, et al., Tennessee Court of Appeals, April 30, 2015 In 1995, a member of the Sheriff ’s Office, Mr. Kennedy, established the Sheriff ’s Athletic Fellowship and Enrichment (S.A.F.E.) program. The program was very successful and in 1998 Mr. Kennedy began a wrestling program under the S.A.F.E. program. As the size of the program continued to grow, Mr. Kennedy in his capacity as a member of the Sheriff ’s department, applied for and received a federal grant to purchase wrestling equipment and insurance. By 2005, the program’s current facilities could not longer support the amount of participants so Mr. Kennedy sought permission to construct a building on school property. The Board approved the request made from the “Rutherford County Sheriff ’s Department Wrestling Club”, which was funded through donations and funds from the Sheriff ’s Office. The club also received 501(c)(3) status from the IRS. In 2010, Mr. Kennedy resigned from the Sheriff ’s Department. After his resignation, the Sheriff removed the equipment from the building. The Board of Education required the club to submit a Use of Facilities Form since it was no longer associated with Rutherford County. When Mr. Kennedy refused, the Director of Schools denied the club access. The club filed suit on a number of charges and the trial court ultimately dismissed all of the claims, concluding that the Board of Education owned the building and the Sheriff ’s Office owned the contents. The Court of Appeals affirmed the trial court, finding that: (1) the building was constructed on behalf of the S.A.F.E. program, not the wrestling club; (2) the wrestling club was acting as a booster-club-type organization and the building was donated to the school system with title vesting in the Board of Education pursuant to Tenn. Code Ann. 49-6-2006; and (3) the personal property was bought under the auspices of the S.A.F.E. program which was administered by the Sheriff ’s Department. http://www.tncourts.gov/sites/default/files/rutherfordwrestlingclub.opn_.pdf

Summer 2015

SLQ Summer Law Handout 7

Page 7 of 10

Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)

Attorney General Opinion No. 15-18 Public Employer’s Amendment of Retirement Plan Affecting Vested Members QUESTION Presuming that a public employer has adequately reserved the right to amend the retirement benefit plan that it maintains for its non-certificated employees, and the amendment does not impair vested rights or otherwise reduce vested benefits that have accrued at the time of the amendment, may the public employer amend the retirement plan to reduce future benefit accruals and other unaccrued rights of vested members? ANSWER Yes, assuming that the public employer has adequately reserved the right to amend its retirement benefit plan, the public employer may amend the plan to reduce future benefit accruals of vested members. In order to adequately reserve the right to amend future benefit accruals of vested members, however, the provisions of the retirement plan must be sufficient to apprise members that their future benefit accruals are subject to modification. http://www.tn.gov/attorneygeneral/op/2015/op15-18.pdf

Attorney General Opinion No. 15-25 County Board of Education Vacancies QUESTIONS 1. Why are county commissioners, who have no education requirements and who are not as familiar as a school board with county education issues, allowed to appoint school board members? 2. Would amending Tennessee Code Annotated §§ 49-2-201(a)(1) and -202(e) to allow the members of a county school board to appoint new members to fill vacancies violate Article VII, Section 2, of the Tennessee Constitution? ANSWERS 1. Article VII, Section 2, of the Tennessee Constitution requires local legislative bodies to make appointments to fill vacancies that occur on local school boards until the next election. 2. Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-25.pdf

Summer 2015

SLQ Summer Law Handout 8

Page 8 of 10

Tennessee School Law Quarterly Attorney General Opinion No. 15-31 Local Agencies Combining Procurement Bids QUESTION Is it possible for a local sheriff â&#x20AC;&#x2122;s office and a school board to combine their food procurement bids in order to take advantage of the higher total purchase amount so that both local governmental entities save money? ANSWER Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-31.pdf

Summer 2015

SLQ Summer Law Handout 9

Page 9 of 10

Tennessee School Law Quarterly

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207

NSBA’s Legal Clips is a service of the National School Boards Association’s Office of General Counsel and the NSBA Council of School Attorneys (COSA). This free service provides thousands of subscribers with weekly updates on important and interesting school law issues, as well as helpful resources. To register visit http://legalclips.nsba.org/about/.

Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney Content by: Ben Torres Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

Summer 2015

TCSBA Annual Meeting November 15, 2015 The TCSBA Annual Meeting will be held November 15, 2015 from 10:00 a.m. - 11:30 a.m. at the Opryland Hotel and Convention Center in conjunction with TSBA’s Annual Convention. There will be an opportunity for TCSBA members to gain CLE credit by attending a pre-convention legal workshop from 1:00 p.m. - 4:30 p.m. on Saturday, November 14. The cost of attendance will be $75. Legal Workshop topics include: •

A look at the legal issues surrounding mold and other environmental issues in school buildlings.

• Avoiding joint employment of your contractors’ employees.

• Learning what every school board member needs ot know about what the law requires.

SLQ Summer Law Handout 10

Page 10 of 10

Fall 2015 Tennessee School Law Quarterly

Tennessee

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration

Table of Contents Volume 15, Issue 3 Pages 1-2

Leonard Rowe v. Hamilton County Board of Ed.

Pages 3-4 Smith/Kucera/Forgerty v. Jefferson County Board of Ed. Sixth Circuit Court of Appeals Page 5-6 Attorney General Opinions Page 7

TSBA Legal Workshop 2015 Annual Convention

Leonard Rowe v. Hamilton County Board of Education Court of Appeals of Tennessee at Knoxville July 13, 2014 Rowe began teaching in Chattanooga in 1967 but was denied tenure at the end of the 1968-99 school year. After service in the military he returned to teaching in Chattanooga and was granted tenure in either 1972 or 1973. In 1970 he was discharged “for cause, including insubordination and inefficiency.” The charges arose from his conduct during and after a discussion with the principal about Rowe’s evaluation. Specifically he was charged with walking out of two conferences called by the principal, refusing to enter into discussion with the principal, and stating that the principal had not been truthful about previous events. After a Board hearing Rowe was dismissed. He appealed but the Board’s decision was upheld by the Chancellor and the Court of Appeals. Beginning in 1986 or 1987 Rowe again attempted to obtain a teaching job in the Chattanooga school system. He was placed on the substitute teacher’s list in 1987 and worked approximately one-half of the school days that year. There were no negative occurrences reported and he received favorable recommendations for full time employment from the principals of the two schools where he taught. Sometime after the school year ended, however, Reynolds, the new superintendent, was asked by Board members why Rowe’s name was placed on the substitute list when he had previously been discharged for cause. Upon verifying the dismissal, Reynolds directed that Rowe’s name be removed from the list. Despite these “setbacks” Rowe continued to apply for employment with the school system and ultimately filed a complaint with the City of Chattanooga Human Rights and Human Relations Commission in 1990 alleging discrimination after his efforts to gain employment were unsuccessful. The complaint was unsuccessful but the Commission recommended the Board adopt a uniform policy to address “previously dismissed teachers’ and substitute teachers’ ability to obtain employment within Chattanooga City Schools. The Board adopted the following policy language:

Fall 2014

SLQ Summer Law Handout 11

Page 1 of 7

Tennessee School Law Quarterly Any employee of the Board of Education terminated for cause inefficiency or immorality shall not be eligible for reemployment, whether at the same or different level. Neither shall such individuals be eligible for employment on a contract basis, including serving as a substitute teacher. Rowe filed a complaint under 42 U.S.C. § 1983 alleging a violation of his due process rights and contending that the policy was unconstitutional. Following a bench trial, the chancellor invalidated the policy but refused to award Rowe any other relief. The Court of Appeals affirmed the lower court’s ruling on the unconstitutionality of the policy but reversed and remanded the holding on damages. The Tennessee Supreme Court determined that Rowe did not have a property or liberty interest in potential employment with the school system and affirmed the Chancery court’s dismissal of his complaint. Rowe also advanced litigation in the federal district court and the Sixth Circuit Court of appeals and was unsuccessful on the basis of res judicata because it was clear that the action arose from the same set of facts that had been litigated in State Court.

parties filed competing motions for summary judgment. The trial court granted summary judgment in favor of the Defendants based on res judicata and Rowe filed a motion to reconsider which was denied. Rowe then appealed. The Court of Appeals concluded that the trial court correctly determined that the claims Mr. Rowe has made arose from the same nexus of facts as those presented in his previous litigation and that the issue of whether an enforceable contract existed is pretermitted as moot. The trial court was affirmed and costs were assessed against Rowe. http://www.tsc.state.tn.us/sites/default/files/rowe_leonard_ opinion_final.pdf

In 1997, the Hamilton County Board of Education assumed operation of the school district from the City of Chattanooga. It was undisputed at the time of the merger that Rowe had not be employed in either school district since 1987. Rowe then began filing actions in the federal district court against the Hamilton County Board of Education based on the same set of facts both in 2006 and 2008. In 2006 the Sixth Circuit affirmed the dismissal by the federal district court which concluded that Rowe provided insufficient allegations to even establish any claim of employment discrimination under state or federal law. Rowe again brought an action in federal district court in 2008 which the court dismissed with prejudice and enjoined Rowe from filing in its court further lawsuits against the same defendants and “any person or persons who either currently or in the future occupy and hold the position of Superintendent of Hamilton County Department of Education…” without first obtaining the court’s written approval. Rowe, in 2014, filed the most recent complaint in Hamilton County Circuit alleging breach of contracts and claiming damages exceeding $1 million dollars for lost employment opportunity. Defendants filed a motion to dismiss asserting that no enforceable contract had ever existed between Rowe and Defendants. The Court denied the motion and the

Fall 2014

SLQ Summer Law Handout 12

Page 2 of 7

Tennessee School Law Quarterly Smith/Kucers/Forgerty v. Jefferson County Board of Education Sixth Circuit Court of Appeals June 11, 2015 The Jefferson County school board, facing a budget shortfall, abolished its alternative school and contracted for its students to be educated in the secular, alternativeschool program at a private, Christian school. David Kucera and Vickie Forgety, teachers who lost their jobs in the abolition of the original alternative school, sued the school board, asserting an Establishment Clause violation. The district court held that the School Board’s action violated the Establishment Clause and awarded damages and an injunction. The Board appealed. In the present case, the Sixth Circuit found the following: The parties stipulate that the School Board’s “sole motivation” for contracting out its alternative-school services to Kingswood (a religious institution) was “to reconcile the Board’s budget with the Commission’s fund allotment.” There is no question, then, that the Board had a secular purpose, as Lemon’s first prong and Justice O’Connor’s subjective test require. Our inquiry, then, should be threefold. First, does historical practice indicate that the Board’s action was constitutionally compliant, regardless of any specific test? Second, did the relationship with Kingswood have the effect of advancing religion—or, in other words, did it objectively convey a message of religious endorsement? Third, did it foster an excessive entanglement of government and religion? We must next consider whether the relationship between the School Board and Kingswood had the primary effect of advancing religion, or whether the action conveyed an objective message that the government was endorsing religion. The Supreme Court has made clear that the state endorses religion when it coerces participation in a religious activity. Coercion not only includes securing participation through rules and threats of punishments but also includes imposing public pressure, or peer pressure, on individuals. Here, there is no suggestion that the Board’s association with Kingswood coerced students to partake in religious activity of any kind, either directly or through peer pressure. Although the students met with a pastor for intake

Fall 2014

meetings, there is no indication that the meetings touched on religion in any way. And although the students used the chapel for assemblies, the record does not indicate that the assemblies required participation in any religious or spiritual practice. Classroom activities did not include religious instruction, prayers, or moments of reflective silence. In light of these facts, we find the district court’s conclusion that the atmosphere was coercive to be clearly erroneous. A reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities. Viewed in this context, it is clear that the taxpayers, School Board, parents, and students all benefited from the relationship between the Board and Kingswood. While this benefit was being conferred, parents and children received only slight exposure to religious content. The exposure they did receive stemmed from Kingswood’s pre-existing status as an unapologetically Christian institution. The mere status of Kingswood as a religious organization does not itself give rise to endorsement. Furthermore, the religious communications were not targeted specifically at the day students, much less the Jefferson County students in particular, but were disseminated in accordance with the way that Kingswood had always operated as an institution. Imbued with this background knowledge—none of which was a secret—a reasonable observer would not have viewed the arrangement as a governmental endorsement of religion. Such an observer would have instead interpreted the arrangement of the School Board as doing the best it could, in the face of unexpected budgetary constraints, to fulfill its legal obligation to provide an alternative-school system and to give the alternative students the best available education.

SLQ Summer Law Handout 13

Page 3 of 7

Tennessee School Law Quarterly In sum, this case involves a secular legislative purpose, does not give rise to a governmental endorsement of religion, and does not entail an excessive entanglement between the government and religion. There is no violation of the Establishment Clause, and we therefore reverse the judgment of the district court. The District Court decision was reversed. http://www.ca6.uscourts.gov/opinions.pdf/15a0119p-06. pdf

Fall 2014

SLQ Summer Law Handout 14

Page 4 of 7

Tennessee School Law Quarterly Attorney General Opinions

Attorney General Opinion No. 15-53 Registration of School Buses for Hire QUESTION 1 When a school bus is owned by a private contractor and operated under contract with the county to provide transportation to students attending county schools, should the bus be registered under Tenn. Code Ann. § 55-44-112(a), with the fee depending on the vehicle’s seating capacity? OPINION 1 Yes. A bus operated for hire to transport passengers should be registered under Tenn. Code Ann. § 55-4-112(a). QUESTION 2 Alternatively, should the school bus be registered under Tenn. Code Ann. § 55-4-111, Class (B); Tenn. Code Ann. § 55-4-111, Class (E); or as a freight motor vehicle under Tenn. Code Ann. § 55-4-113(a)(2), with the specific registration class and fee depending upon the weight of the vehicle? OPINION 2 No. http://attorneygeneral.tn.gov/op/2015/op15-53.pdf

Attorney General Opinion No. 15-58 Uniform Grading Policy and HOPE Scholarship Eligibility QUESTION Are private secondary schools as defined in Tennessee Code Annotated § 49-4-902(10)(B) required to use the state Uniform Grading Policy as set forth in Tenn. Code Ann. § 49-4-902(41) for purposes of establishing student eligibility for the HOPE scholarship? OPINION No. It appears that the Legislature intended that HOPE scholarship eligibility may be determined either through the use of the State uniform grading scale or another grading method that permits a determination of the mathematical equivalence to grades on the uniform scale. http://attorneygeneral.tn.gov/op/2015/op15-058.pdf

Fall 2014

SLQ Summer Law Handout 15

Page 5 of 7

Tennessee School Law Quarterly Attorney General Opinions Attorney General Opinion No. 15-62 License for Providing Canine Detection Services to Public Schools and Private Entities QUESTION 1 Are private entities that provide canine detection services to county high school systems required to be licensed under Tenn. Code Ann. § 62-26-202, et seq., also known as the “Private Investigators Licensing and Regulatory Act” (the “Act”)? OPINION 1 Yes. A private entity that contracts to provide canine detection services is acting as an “investigations company” and a “private investigator” as defined in Tenn. Code Ann. § 62-26-202 and must be licensed unless otherwise exempt from the Act. None of the exemptions set forth in Tenn. Code Ann. § 62-26-223 is applicable to entities or their employees that provide these services to county high schools. Specifically, they are not exempt under Tenn. Code Ann. § 62-26-223(b)(1) as “a governmental officer or employee performing official duties” because they are independent contractors, not employees of the county high school systems. QUESTION 2 Are private entities that provide canine detection services to private entities required to be licensed under the Act? OPINION 2

Yes. As stated above, a private entity that contracts to provide canine detection services is acting as an “investigations company” and a “private investigator,” and is not exempt from the Act under Tenn. Code Ann. § 62-26223. http://attorneygeneral.tn.gov/op/2015/op15-062.pdf

Fall 2014

SLQ Summer Law Handout 16

Page 6 of 7

Tennessee School Law Quarterly TSBA Legal Workshop 2015 Annual Convention

Saturday, November 14 - 1:00-4:30 p.m. - Pre Convention Legal Workshop (Last chance for CLE in 2015; see agenda below)

Tennessee School Law Quarterly

Sunday, November 15 - 10:00 -11:30 a.m. - TCSBA Meeting (Annual Business Meeting and Tennessee Roundtable) Reserve your spot now: https://tsbaregistration.wufoo.com/

Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 615/815-3911 Fax: Layout and Design by: Katie Hock Director of Communications and Member Services Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

Saturday, November 14, 2015 1:00 p.m. - 4:30 p.m. 1:00-2:00 p.m.

“Is Student Speech Free?” When May Students Face Consequences for Online Behavior? Christy Ballard – General Counsel, Tennessee Department of Education

A look at when school districts may discipline students for online speech and other electronic communications. 2:00-2:15 p.m.

Break

2:15-3:15 p.m.

“The Top 6 Causes of School Board Employees Getting Into Trouble” Valerie Speakman, General Counsel, Shelby County Board of Education

Have you ever said…”Oh! I wish she hadn’t said THAT?” This session will take a look at what school district employees need to know about the art of being discreet. 3:15-3:30 p.m.

Break

3:30-4:30 p.m. “Your School Has Been Sued! SO NOW What?” Charles M. Purcell, Attorney Purcell, Sellers & Craig In spite of all your training and best efforts, you’ve been served with a lawsuit. This session will discuss what you should do when that happens. 4:30 Adjourn

Fall 2014

SLQ Summer Law Handout 17

Page 7 of 7

Winter 2016 Tennessee School Law Quarterly

Tennessee

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration

Table of Contents Volume 16, Issue 1 Pages 1-2 Susan Jones v. Knox County Board of Education Pages 3-5 Service Employees International Union Local 205 v. Metropolitan Nashville Board of Public Education, Et Al. Page 6 Attorney General Opinions Page 7

TSBA Winter CLE

Susan Jones v. Knox County Board of Education December 21, 2015 This appeal concerns a tenured teacher’s legal challenge to her transfer from the position of Instructional Coach to classroom teacher, a transfer she considers to be a demotion. At the end of the 2011-2012 school year, Superintendent, Dr. James McIntyre, transferred Jones, a tenured teacher with Knox County schools, to her new position. In August 2013, Jones sued Defendants in the Trial Court, alleging that her transfer was arbitrary, capricious, and in violation of the requirements of Tenn. Code Ann. § 495-510 (2013), which provides: The director of schools, when necessary to the efficient operation of the school system, may transfer a teacher from one location to another within the school system, or from one type of work to another for which the teacher is qualified and licensed; provided, that transfers shall be acted upon in accordance with board policy. Jones also alleged that her grievance process was unduly cut short mid-process. At the heart of the complaint was the allegation that her performance evaluations were not considered by McIntyre, as required. Several exhibits were attached to Jones’ complaint to this end. In the achievement and growth measures of her total evaluations, Jones received the highest possible results, according to her complaint. However, Jones acknowledged also having received criticism from a school principal, and receiving an unsatisfactory score of 2 in section 5 regarding classroom coaching. In October 2014, Defendants filed a motion to dismiss asserting that Jones lacked a redressable grievance because she did not contest the accuracy of the data used in the evaluations. Moreover, according to Defendants, Jones’ transfer had a rational basis in that, by her own acknowledgement, Jones had received certain criticism and unsatisfactory marks in her evaluations. Therefore, per Defendants’ argument, Jones transfer could not be arbitrary or capricious. In January 2015, the Trial Court granted Defendants’ motion to dismiss. In its final order of dismissal, the Trial Court found that Jones’ transfer was not arbitrary, capricious, or contrary to the requirements of the law and that Ms. Jones’ transfer was fair and reasonable; second, that Ms. Weaver Jones filed an improper grievance,

Fall 2014

SLQ Summer Law Handout 19

Page 1 of 7

Tennessee School Law Quarterly and, therefore, the grievance was not entitled to secondary review; and thirdly, Superintendent McIntyre acted properly in refusing to allow the plaintiff to advance her evaluation grievance. Jones appealed raising the issue that the Trial Court erred in granting Defendants’ motion to dismiss. While directors of schools have discretion to transfer teachers, this discretion is not unbounded. Tenn. Code Ann. § 49-1-302(d)(2)(A)(2013), states in relevant part: “The evaluations shall be a factor in employment decisions, including, but not necessarily limited to, promotion, retention, termination, compensation and the attainment of tenure status.” Jones’ complaint alleges that Defendants failed to consider her evaluation results which is contrary both to state statutory law requiring her evaluations to be a factor in Defendants’ employment decision to transfer her as well as State Board of Education Policy 5.201, which requires that evaluations be used to decide, among other things, assignments. Defendants contend, however, that because the transfer was not arbitrary or capricious, Ms. Jones’ transfer is presumed to be reasonable.

Jones’ factual allegations as true for purposes of the motion, made findings, and ruled on the merits of the case. Jones’ claim may or may not succeed on its merits. Nevertheless, in our judgment, Jones has alleged facts sufficient to state a claim for relief. We hold that the Trial Court erred in granting Defendants’ motion to dismiss. In conclusion, the Court held that “Jones has alleged facts sufficient to state a claim for relief. Namely, our Supreme Court in Lawrence County articulated the legal route by which a tenured teacher may bring a direct action to challenge a transfer alleged to be arbitrary, capricious or contrary to applicable law. Taken as true, Jones’ allegation that she was transferred arbitrarily without any consideration of her evaluation results could warrant relief. We take no position as to the ultimate outcome of this case. We hold only that the Trial Court erred in granting Defendants’ motion to dismiss. We reverse the judgment of the Trial Court, and remand this case for further proceedings.” https://www.tncourts.gov/sites/default/files/jonesswopn.pdf

The Court indicated the major flaw in Defendants’ argument is that, while decisions to transfer are in fact presumed to be reasonable and fair, this presumption is rebuttable. It is insufficient and circular for Defendants to state simply that Jones’ transfer was reasonable, and rest on that. It begs the question. If Jones’ complaint is construed liberally and her factual allegations are taken as true, as they must be at the motion to dismiss stage, then McIntyre improperly failed to consider her evaluation results in making the decision to transfer her. Defendants argue that because Jones herself acknowledges that she received certain unsatisfactory marks and criticism, the transfer cannot have been arbitrary or capricious. Defendants' interpretation would serve to vitiate any protection for tenured teachers seeking to legally challenge a transfer because under that interpretation potentially any criticism of a teacher’s performance, no matter how insignificant, could justify a transfer. Such an interpretation is inconsistent with the applicable law, especially our Supreme Court’s framework for challenging transfers. Moreover, the Court found that the Trial Court applied the wrong standard in deciding Defendants’ motion to dismiss. Rather than applying the required standard applicable to a Rule 12.02(6) motion to dismiss as discussed above, the Trial Court instead did not take

Fall 2014

SLQ Summer Law Handout 20

Page 2 of 7

Tennessee School Law Quarterly Service Employees International Union Local 205 v. Metropolitan Nashville Board of Public Education, Et Al. December 21, 2015

employees and to direct the Director to comply with the LNP. On March 12, the Chairperson responded by letter to SEIU, stating that the complaint was “without merit and should proceed no further.”

This case involves the ability of the Service Employees International Union Local 205 (“SEIU”), a labor union, to represent service employees of the Metropolitan Nashville Board of Public Education (“the Board”).

SEIU filed a complaint in Davidson County Chancery Court on July 16, 2012, consisting of two counts. In count one, the complaint alleged that the LNP had been enacted by the Board pursuant to the powers granted it at Tenn. Code Ann. § 49-2301(b)(1)(A) and (HH), the Metropolitan Charter, and “other applicable law”; that the Board had never rescinded the LNP or delegated the authority to do so; that the Director refused to recognize SEIU as the exclusive bargaining representative, refused to meet and confer with SEIU, and refused to abide by the payroll deduction section of the LNP by allowing members of SEIU to revoke their membership and stop the deduction of dues from their pay at any time of the year.

The parties agree that in July 2000, the Board adopted the Labor Negotiations Policy (“LNP”), which gave nonlicensed (i.e., non-teaching) employees the right to join an employee organization; to choose exclusive representatives to meet and confer with the Director of Schools (“the Director”) on matters relating to working conditions and other terms and conditions of employment; to have their representatives enter into nonbinding memorandums of understanding (“MOU”) with the Director; and to have organization dues deducted from their paychecks with their written authorization. Pursuant to the procedure set forth in the LNP, the SEIU was selected as the exclusive representative by a majority of service employees in October 2000, and the Board duly certified SEIU as the exclusive representative. SEIU thereafter entered into a series of MOU’s with the Director, the most recent of which extended from July 1, 2008, to June 30, 2011. The Director did not meet with SEIU to negotiate a new MOU to take effect after June 30, 2011; after that date he permitted employees to stop automatic withdrawal of SEIU dues from their paychecks and did not recognize SEIU as the exclusive representative of the workers. In December 2011, the Director sent a letter to the representatives of SEIU and the United Steelworkers, the union which represented the bus drivers, advising that he “desire[d] to establish a harmonious working relationship with our support employee unions” and that “[f ]or our future relationship with support employee unions to be mutually beneficial and productive, we must acknowledge the recent changes in state law.” The letter stated that, in light of these changes in the law, the Director and his executive staff had “met and voted to rescind [the LNP].” On the same day, the Director notified the members of the Board by electronic mail of his decision and attached a copy of the letter. SEIU sent a letter to the Chairperson of the Board on January 9, 2012, filing a complaint against the Director and asking the Board to confirm the SEIU’s status as the exclusive bargaining representative of the support

Fall 2014

Count two alleged that the meeting at which the Director and his executive staff rescinded the LNP did not comply with the Open Meetings Act. SEIU sought a declaratory judgment that “[t]he Court should declare that the LNP remains in effect and is binding upon the Director of Schools” and “further declare that [the Director] is in violation of the LNP” and other relief, including a permanent injunction requiring the Director to comply with the LNP, and an award of damages as well as attorney’s fees and costs. The Board filed its Answer on September 4, 2012, asserting that the Director had the authority to rescind the LNP and that “due to the changes in state law and Board policy, the School System is no longer required to maintain the LNP or enter into negotiations with SEIU.” Both parties moved for judgment on the pleadings and for summary judgment. In due course, the court granted SEIU’s motion on the pleadings in part, ruling that Tenn. Code Ann. § 49-2-301 did not give the Director the authority to abrogate the LNP and, consequently, the LNP was still in effect. On the parties’ cross motions for summary judgment on count one of the complaint, the Court granted SEIU’s motion and denied the Board’s motion, declaring that: [The LNP] is a full-fledged policy of the Board of Education, as opposed to some lesser policy or procedure. The LNP can only be revoked by the Board of Education. The Director of Schools does not have legal authority to revoke the LNP under any statute, charter provision, or Board of Education policy reviewed by this Court. SLQ Summer Law Handout 21

Page 3 of 7

Tennessee School Law Quarterly Therefore, Dr. Register did not effectively rescind the LNP. The LNP is still in effect. The Board appeals, raising the following issue: “Did the Trial Court err in granting judgment in favor of the SEIU, determining that the LNP is still in effect and leaving open the possibility of enforcement?” Prior to amendments to Title 49 which took effect in 2011, the Director had the following powers: (EE) Within the approved budget and consistent with existing state laws, board policies and locally negotiated agreements covering licensed personnel, employ, transfer, suspend, nonrenew and dismiss all personnel, licensed or otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title. Nothing in this subdivision (b) (1)(EE) shall be construed to alter, diminish or supersede the Education Professional Negotiations Act, compiled in chapter 5, part 6 of this title; (FF) All persons who are employed in a position for which no teaching license is required shall be hired on a year-to-year contract. The director shall provide a person who is employed in such a position fifteen (15) days’ notice of nonrenewal of the contract before the end of the contract period[.] In 2011, the General Assembly enacted amendments to various parts of Title 49, including the duties of the director listed in section 301(b). The amendments to the statute pertinent to this appeal read as follows: (EE) Within the approved budget and consistent with existing state laws and board policies, employ, transfer, suspend, non-renew and dismiss all personnel, licensed or otherwise, except as provided in § 49-2-203(a)(1) and in chapter 5, part 5 of this title; (FF) All persons who are employed in a position for which no teaching license is required shall be hired at the will of the director of schools. The local board of education shall develop a policy for dismissing such employees[.] Tenn. Code Ann. § 49-2-301(b)(1). The practical effect of these amendments was to require the Board to assign to the Director the duty to hire, transfer, suspend, non-renew, and terminate all personnel and to remove the requirement that those decisions be made in accordance with “locally negotiated agreements covering licensed personnel.”

Fall 2014

At the same time as the amendments to Tenn. Code Ann. § 49-2-301 were passed, the Professional Educators Collaborative Conferencing Act of 2011 was enacted in chapter 378 of the 2011 Tenn. Pub. Acts. The Act requires local school boards “to participate in collaborative conferencing with professional employees, or their designated representatives, if any, with respect to only those terms and conditions of employment that are specified in this section”; the specified terms and conditions are salaries or wages, grievance procedures, insurance, fringe benefits, working conditions, leave, and certain payroll deductions. Tenn. Code Ann. § 49-5-608(a). The Act grants the following rights to professional employees (i.e., licensed teachers): (1) the right to self-organization, (2) to form, join, or be assisted by organizations, (3) to participate in collaborative conferencing with local boards of education through representatives of their own choosing, and (4) to engage in other concerted activities for the purpose of other mutual aid and benefit; provided, that professional employees also have the right to refrain from any or all such activities. Tenn. Code Ann. § 49-5-603. The Act also ensures that professional employees of school boards have the right to engage in collaborative conferencing “through representatives of their own choosing” and that “no professional employee, group of professional employees, or professional employee organization shall be denied the opportunity to represent themselves or groups of professional employees in discussions.” Tenn. Code Ann. § 49-5-605. Reading the amendments to Tenn. Code Ann. § 49-2-301 and the amendments to part 6 of chapter 5 of Title 49 in pari materia, the General Assembly granted the right to engage in collaborative conferencing on the terms and conditions of employment only to licensed teachers while making the employment of non-licensed personnel to be at the will of the director. In vesting sole discretion to make employment decisions pertaining to non-licensed personnel in the Director, the Legislature negated any Board policy which has the effect of removing that discretion. Much of SEIU’s argument was premised on the contention that the LNP was unaffected by the 2011 amendments. To the contrary, the Court concluded that LNP was abrogated by the amendments. The requirements that the Director recognize a single exclusive representative of the employees, meet with that organization’s representative to discuss the terms and conditions of service workers’ employment, and permit payroll deduction for only that organization’s dues, are not consistent with the employment at will status SLQ Summer Law Handout 22

Page 4 of 7

Tennessee School Law Quarterly conferred on non-licensed personnel at Tenn. Code Ann. § 49-2301(b)(1)(FF). After the 2011 amendments became effective, the LNP was no longer operable; the Director was not obligated to follow it, and no Board action was required to rescind it. As the Director is bound by statute to see “that the laws relating to the schools and rules of the state and the local board of education are faithfully executed,” Tenn. Code Ann. § 49-2-301(b)(1)(A), the Director was properly exercising the authority granted to him by law when he exercised his discretion to not follow the procedures in the LNP. The Court reversed the trial court’s grant of summary judgment to SEIU and remanded the case for any further proceedings necessary. https://www.tncourts.gov/sites/default/files/svc. emp_.v.metroopn.pdf

Fall 2014

SLQ Summer Law Handout 23

Page 5 of 7

Tennessee School Law Quarterly Attorney General Opinions

Attorney General Opinion No. 16-01 Assumption of Memphis City Schoolsâ&#x20AC;&#x2122; Debts by Shelby County after Transfer of School Operations to County QUESTION 1 The City of Memphis Special School District (Memphis City Schools) carried an unfunded Other Post-Employment Benefits (OPEB) liability when it surrendered its charter several years ago. At that time all Memphis City Schools operations were transferred to Shelby County Schools. Under State law, what process is required for Shelby County to assume the OPEB indebtedness of Memphis City Schools that existed when school operations were transferred? OPINION 1 For Shelby County to assume the OPEB indebtedness of Memphis City Schools that existed when school operations were transferred to Shelby County Schools, Tennessee Code Annotated Â§ 49-2-1002(d) requires the county legislative body to adopt, by a vote of a majority of its members, a resolution assuming the OPEB indebtedness owed by Memphis City Schools.

Fall 2014

SLQ Summer Law Handout 24

Page 6 of 7

Tennessee School Law Quarterly Winter CLE

Tennessee Council of School Board Attorneys Friday February 26, 2016 10:00 a.m. - 2:15 p.m TSBA Headquarters - Nashville

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Katie Hock Director of Communications and Member Services Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

Fall 2014

AGENDA 10:00 – 11:00 How Tennessee Schools Should Respond to Open Records Requests Samuel L. Jackson – Lewis, T Thomason, King, Krieg, and Waldrop, P.C. 11:00 – 12:00 The Transgender Issue – What’s Happening in the Courts? Emily Harper Mack – Lewis, Thomason, King, Krieg, and Waldrop, P.C. 12:00 – 12:15

Break & Working Lunch

12:15 – 1:15 Ethics in the Life of an Attorney Randall G. Bennett – Deputy Executive Director/General Counsel TSBA 1:15 – 2:15 Legislative Update – What’s Happening in the General Assembly? Charles W. Cagle – Lewis, Thomason, King, Krieg, and Waldrop, P.C. TSBA is applying for three (3) hours general credit and one (1) hour dual. To Register – Click Link https://tsbaregistration.wufoo.com/forms/s1dhsefw1xykibp/

SLQ Summer Law Handout 25

Page 7 of 7

Tennessee School Law Quarterly Spring 2016

Tennessee

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators

Table of Contents Volume 16, Issue 2 Pages 1-3

Harrison v. Shelby County Board

Page 3

HCEA v. Hamilton County Board

Page 4

Stiles v. Grainger County Board

Page 5

Attorney General Opinions

Page 6

Summer Law Institute: Gatlinburg and Jackson

Jacqueline Harrison v. Shelby County Board of Education Tennessee Court of Appeals at Jackson Jacqueline Harrison was a tenured teacher with the Memphis City Schools, now the Shelby County Board of Education (SCBE) who taught for approximately twenty-seven years. She has a degree in English and is certified to teach English in grades seven through twelve. During her teaching career at Memphis City Schools, Ms. Harrison received only one unsatisfactory evaluation, which was for the 2011-2012 school year, the year at issue. Ms. Harrisonâ&#x20AC;&#x2122;s last teaching assignment was at Wooddale High School, where she taught for approximately six years. In 2010, Mr. Michael Kyle became the principal at Wooddale. At the time, Wooddale was in the bottom five percent of schools in the City of Memphis. During the 2010-2011 school year, Ms. Harrison taught Language X, which was a literacy program for students that were significantly behind in reading. The goal of the class was to bring low tier students up two grade levels in reading. According to Mr. Kyle, the English department was one of his strongest departments in both 2010-2011 and in 2011-2012. Specifically, he testified that the literacy scores were the highest scores that Wooddale received in any subject. Although Ms. Harrison received a satisfactory evaluation for the 2010-2011 school year, Mr. Kyle noted on her evaluation that she needed to strengthen her classroom management. Following the 2010-2011 school year, Memphis City Schools no longer offered the Language X program at Wooddale. Rather than move Ms. Harrison to another class, Mr. Kyle attempted to move Ms. Harrison to another school. Because she had more seniority than many of the other English teachers at Wooddale, Ms. Harrison filed a grievance regarding Mr. Kyleâ&#x20AC;&#x2122;s attempt to reassign her. Ms. Harrison was successful in her grievance, and as a result, she returned to Wooddale for the 2011-2012 school year. She contends that she began having problems with Mr. Kyle after she successfully thwarted his attempt to have her reassigned to another school. During the 2011-2012 school year, Ms. Harrison taught AfricanAmerican Literature and English 10. According to Mr. Kyle, Ms. Harrison immediately began having problems with her classroom. Mr. Kyle testified SLQ Summer Law Handout 27

Fall 2014

Page 1 of 6

Tennessee School Law Quarterly that Ms. Harrison was unable to control her classroom. He complained that Ms. Harrison made calls to the office for assistance with her students almost daily. Mr. Kyle further complained that she sent many students to the office for unruly behavior and disrupting class when she should have been able to manage these students without assistance from the office. Ms. Harrison responded that several of her students had emotional problems. She also had a block of low functioning students who could not read above a fourth grade level and therefore, it was difficult to create lesson plans that met the needs of all of her students. The 2011-2012 performance evaluations were released in May 2012. After receiving a poor evaluation for the year, Ms. Harrison’s first poor evaluation in twenty-seven years of teaching, Mr. Kyle recommended that Ms. Harrison’s employment be terminated due to her lack of classroom management skills and her failure to adhere to district policies. On September 27, 2012, the Board of Education made its initial determination to approve Ms. Harrison’s dismissal on the statutory grounds of “unprofessional conduct” and “inefficiency” as set out in TCA § 49-5501(3) and (6). As provided for by TCA § 49-5-512, Ms. Harrison requested a hearing on these charges before an impartial hearing officer. On February 12, 2013, the hearing officer reviewed the charges and concluded that SCBE did not prove that Ms. Harrison had engaged in unprofessional conduct; however, he sustained the charge of inefficiency by failing to maintain control of her classroom. Other than failure to control her classroom, the hearing officer made no other findings supporting the charge of inefficiency against Ms. Harrison. No state test scores or system wide test scores were introduced to show Ms. Harrison’s students were performing below the level of other students in English 10 classes taught by other teachers in the Memphis City School System

Ms. Harrison filed her appeal of the termination decision in Shelby County Chancery Court on April 10, 2014. On June 16, 2015, the trial court entered its findings of fact and conclusions of law. The trial court found that there was insufficient evidence to support the hearing officer’s finding of inefficiency. Additionally, the trial court found that there was a disparity between Ms. Harrison’s discipline and that of another teacher, Kristen Oshfeldt. Based on these findings, the trial court granted Ms. Harrison’s writ of certiorari by order entered June 30, 2015. The trial court reversed the decision of the SCBE and remanded the case to the SCBE for entry of an order reinstating Ms. Harrison as a teacher with full back pay, seniority, and benefits. SCBE appealed. The key question on appeal was whether there is sufficient evidence in the record to support the hearing officer’s finding of inefficiency. To support the charge of inefficiency, Mr. Kyle testified extensively about books and papers found outside of Ms. Harrison’s classroom. Mr. Kyle testified that this incident illustrated how Ms. Harrison was unable to properly supervise or control her students. However, both the hearing officer and the trial court found that no one knows who threw those items outside, and it is possible that the books and paper could have come from another classroom. Also, there were no names in the books to identify the books as being assigned to Ms. Harrison’s students. Harrison was observed four times over the school year and while three of the observations noted that Harrison had classroom management issues, only one of the four post observation reports suggested professional development. Three of the four did not detail any areas for growth or list any additional considerations for Ms. Harrison.

On September 17, 2013, the SCBE heard Ms. Harrison’s appeal and remanded the case to the hearing officer for further findings about “[t]he school district’s policy and/or practice regarding professional development, including, but not limited to, who provides oversight/monitoring to ensure professional development is offered and what actually happened with that process in this case.”

Board Policy 5.8034 provided that “principals and supervisory personnel are responsible for identifying professional development needs and developing individual professional development plans for their employees.” During oral argument, SCBE’s attorney conceded that MCS Professional Development Policy 5.8034 required the development of an individual professional development plan prior to termination of a tenured teacher.

The remand hearing was held on November 8, 2013. Following the remand hearing, the hearing officer affirmed his initial determination that Ms. Harrison was inefficient as defined by statute. The decision by the hearing officer was upheld by the SCBE on February 25, 2014.

The Court determined that it was clear that SCBE failed to abide by its own policies regarding professional development. In his opinion on remand from the SCBE, the hearing officer specifically noted that “Mr. Kyle did not recommend specific professional development to Ms. SLQ Summer Law Handout 28

Fall 2014

Page 2 of 6

Tennessee School Law Quarterly Harrison.” The professional growth plan submitted by Mr. Kyle contains only boiler-plate catch-phrases about types of support available throughout the district. The plan submitted into evidence is not individualized to Ms. Harrison. Additionally, the plan is not signed by Mr. Kyle, nor did he explain the omission of his signature during his testimony. This form was developed by the Memphis City Schools and has a block where the principal’s signature should appear. Based on the evidence, particularly the hearing officer’s finding noted above, the Court could not conclude that Mr. Kyle developed and implemented an individual professional development plan for Ms. Harrison as required by MCS Professional Development Policy 5.8034 before seeking termination of her employment. After a careful review of the entire record, the Court agreed with the trial court that there is not sufficient evidence to support SCBE’s termination of Ms. Harrison’s employment. Having determined that the SCBE failed to follow its own policies before seeking termination of a tenured teacher and having determined that there is insufficient evidence in the record to support a finding of inefficiency and affirmed the order of the trial court. https://www.tncourts.gov/sites/default/files/ harrisonjacquelineopn.pdf

Hamilton County Education Ass’n. v Hamilton County Board of Education - Sixth Circuit Court of Appeals - (See Summer 2015 SLQ for more on this case) During the final year of the last EPNA contract with HCEA, there was a concerted effort by the Association to convince principals to continue their membership even though principals and other administrators would no longer be a part of the “bargaining unit” for the purposes of the Professional Educators Collaborative Conferencing Act (PECCA), which replaced the EPNA. When informed of this, Assistant Superintendent for Human Resources Stacy Stewart wrote a letter to Association President Sandra Hughes and stated: • that the Association could not represent principals or count them among membership totals for the purposes of PECCA • that she was concerned regarding other statements made by Association representatives at their

September 17 meeting that she worried “could be construed as intimidating” specifically referring to Association claims that, without the Association, teachers could be subjected to ten hour workdays and 100+ page code of conduct documents and could lose medical and retirement benefits • she also referenced pejorative comments made regarding a competing professional organization; and • she closed the letter by citing to the PECCA prohibition on professional organizations attempting to coerce employees. Stewart stated that continuing this conduct would “either result in an official request for a retraction of such statements or in clarification/ correction of these statements by the district.” Based on the letter, HCEA filed the complaint alleging unlawful acts under both EPNA and PECCA as well as a violation of the Association’s First Amendment rights. HCBOE responded by arguing that there was no violation of state or federal law and pointed to its own right in TCA 49-6-606(a)(5) to “express any views of opinions on the subject of employer-employee relations; provided however, that such expression shall contain no threat of reprimand, discharge or promise of benefits.” After pointing out the obvious flaws in the Association’s arguments the Court found the letter did not violate any provisions of the EPNA or PECCA because if falls squarely within the protective space afforded to the Board in the law referenced in the previous paragraph. Additionally, the Court found that the letter did not burden the Association’s right to expressive Association and found for the district on the First Amendment violation claim granting summary judgment to the district on both claims and denying the HCEA motion for summary judgment. The Sixth Circuit affirmed the district court’s decision holding that “(B)ecause the Board’s letter did not significantly burden HCEA’s right to expressive association, the district court correctly granted summary judgment to the Board on the First Amendment claim. As a result, we do not address whether HCEA is an expressive association entitled to constitutional protection or whether governmental interests in restriction outweigh HCEA’s right to association.” Link to full opinion: http://www.ca6.uscourts.gov/ opinions.pdf/16a0098p-06.pdf

SLQ Summer Law Handout 29

Fall 2014

Page 3 of 6

Tennessee School Law Quarterly Stiles v. Grainger County TN, et al. 6th Circuit Court of Appeals, March 25, 2016 DS and his mother, Kelly Stiles (“Stiles”) (collectively “Plaintiffs”), appeal from the district court’s order granting summary judgment to the Grainger County Board of Education, several school officials, and the police chief (collectively “Defendants”) in their action alleging violation of Title IX of the Education Amendments of 1972 and deprivation of DS’s constitutional rights to equal protection and substantive due process under 42 U.S.C. § 1983. All of Plaintiffs’ claims arise from various school and city officials’ allegedly inadequate response to DS’s complaints of student-on-student sexual harassment. DS attended Rutledge Middle School (“Rutledge”) from August 2010 to January 2012 as a seventh and eighth grader. During that time frame, DS was involved in a string of verbal and physical altercations with other students. DS and his mother repeatedly complained to school Officials that other students were bullying DS. School officials investigated these complaints and responded by disciplining the students found culpable and taking other proactive measures such as placing DS in different classes from his alleged harassers. Despite these efforts, DS continued to have problems with other students, culminating in an attack in the school bathroom that led DS to transfer to another school. DS’s case revolves around these school officials’ alleged failure to recognize and reasonably respond to a pattern of bullying incidents he allegedly suffered while attending Rutledge which include the following: • DS was called names and pushed in the hallways and cafeteria but did not report the name-calling or shoving to school authorities with a few exceptions • August 2010: A student, TK, pushed another student who then fell into DS and injured DS’s lip • September 2010: Stiles complained that eighth graders had been demanding money from DS however DS refused to give them money and stated that eight graders had not call him names or hit him • February 2011: CB and DS fought in class and the investigation indicated that DS was not an “innocent” in the altercation…both boys were given a warning • February 2011: TL harassed DS in gym class and was given two days of in-school suspension • May 2011 DS reported that five boys shoved him in the hallway and ultimately caused him to fall and hit his head…four of the five received in-school suspension

• Stiles called the school to report DS’s bullying problems and complain that administrators failed to alleviate the situation…administrators met with the alleged harassers and warned that they would face steeper punishment in the future • None of DS’s teachers had witnessed any bullying and some indicated that DS would even instigate problems • 2011-12: The name calling and pushing continued most of which DS did not report • January 2012: The final and most serious altercation occurred when GM and AC attacked DS in the school bathroom when GM put him in a headlock and AC punched him in the stomach…DS ended up on the floor and both boys kicked him • Administrators investigated and as a result GM received eight days of in-school suspension and AD received three Plaintiffs filed suit in the United States District Court for the Eastern District of Tennessee, asserting multiple federal and state-law claims against various defendants associated with the Grainger County school system and the Rutledge Police Department. The district court granted Defendants’ motions for summary judgment on the federal claims and declined to exercise supplemental jurisdiction over the remaining state-law claims. Specifically, the district court held that Plaintiffs did not offer sufficient evidence to support a Title IX claim against the Board of Education because Plaintiffs could not demonstrate that Defendants acted with the requisite deliberate indifference. As for the § 1983 claims, the district court held the Plaintiffs could not establish an equal protection violation because Plaintiffs failed to show that DS was treated differently from similarly situated students. The district court ruled that the due process claim also failed as a matter of law because DS was harmed by other students rather than government officials, and because no special relationship exists between schools and their students. After extensive analysis the Court affirmed the judgment of the district court and ruled that the Plaintiffs could not show a violation of DS’s rights under Title IX or § 1983 by either the Board or the individual Defendants. Because there was no constitutional violation by any of the individual Defendants, the Court did not address the parties’ arguments regarding the defenses of qualified immunity or the statute of limitations. http://www.ca6.uscourts.gov/opinions.pdf/16a0072p-06. SLQ Summer Law Handout 30

Fall 2014

Page 4 of 6

Tennessee School Law Quarterly Attorney General Opinions

Attorney General Opinion No. 16-11 Proposed Constitutional Amendment to Public Schools Clause, Tenn. Const. art. XI, § 12 QUESTION Would the language, if adopted, in HJR 493, 109th Gen. Assembly 2016, affect the equal protection provisions of article I, § 8, or article XI, § 8, of the Tennessee Constitution? OPINION No. The proposed amendatory language does not change the meaning of the public schools clause (article XI, § 12) of the Tennessee Constitution, and would not affect the equal protection provisions of article I, § 8 or article XI, § 8, of the Tennessee Constitution, which would still limit, as they do now, the authority of the General Assembly to determine how to provide for free public education in Tennessee pursuant to the public schools clause. Link to Full Opinion: http://attorneygeneral.tn.gov/op/2016/op16-11.pdf

Attorney General Opinion 16-15 Effect of House Bill 2414, 109th General Assembly (2016), on Title IX Funding QUESTIONS 1. Does House Bill 2414, 109th Gen. Assem. (2016), pose a risk of violation of Title IX of the Education amendments of 1972? 2. What is the likely effect of a violation of Title IX on federal funding for public education in Tennessee? OPINIONS 1. Yes if only because the U.S. Department of Education, which is charged with enforcing Title IX, interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their “gender identity” instead of their anatomical gender. 2. If H.B. 2414 is enacted, a public school district or institution of higher learning that implements that law will be putting its Title IX funding at risk, because a recipient of federal funding that discriminates in violation of Title IX may lose its federal funding. Link to Full Opinion: http://attorneygeneral.tn.gov/op/2016/op16-15.pdf

SLQ Summer Law Handout 31

Fall 2014

Page 5 of 6

Tennessee School Law Quarterly Summer Law Institute June 24 & July 22-23 Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Katie Hock, Director of Communications and Member Services Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902

We’re on the web! Visit us at: www.tsba.net

Topics • • • • • • • • •

A Legislative Update - What Happened during the 109th General Assembly? Student Speech: When May Students Face Consequences for Online Behavior? Special Education Update: The Parents’ Perspective Legal Realities of Transgender Students Crisis Management: Communication is Key The Equal Access Act and Limited Open Forums *Teacher Licensure Actions in 3D Case Update - A Round-up of School Law Cases *Ethics CLE

*Sessions offered in Gatlinburg only

June 24, 2016 - Doubletree Hotel in Jackson, TN July 22-23, 2016 - Park Vista Hotel in Gatlinburg, TN The Jackson Summer Law Institute will be held June 24, 2016 from 8:00 a.m. - 4:00 p.m. Breakfast, breaks and lunch will be provided. The Gatlinburg Summer Law Institute will be held July 22, 2016 from 7:00 a.m. - 5:30 p.m. with breakfast, breaks and lunch provided and on July 23, 2016 from 7:30 a.m. - 10:30 a.m. with breakfast provided. Registration Fees

Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

TSBA Board Members and TCSBA Members: $150 Non TSBA & Non TCSBA Members: $300 Registration fees must be received by TSBA prior to the meeting. Please make checks payable to the Tennessee School Boards Association.

SLQ Summer Law Handout 32

Fall 2014

Page 6 of 6

This is a publication of the Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 www.tsba.net