Tuesday, August 25, 2015
In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.” This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows. Gilbert Unified School District placed this message on it biology textbooks:
The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.
The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.
In the late 80s, South Carolina passed legislation providing that sex education "may not include a discussion of alternate sexual lifestyles including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases.” This provision is just one part of a larger section of the code dealing with sex education. The code includes a provision that requires school districts to send a letter to parents each year outlining what will be taught in the class. This year, the letter focused directly on homosexuality, parroting the statute. The letter informed parents:
The program of instruction for this unit may not include discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted infections.
The timing of this shift in focus in the letter left some scratching their head. A major purpose of the legislation had been to promote sex within marriage, not outside of it. Of course, homosexual couples now have the right to be married in South Carolina, which begs the question of whether the state can intentionally exclude conversations of their sexual relationships.
The answer would seem to be no, but not necessarily because of the recent gay marriage case. The First Amendment should prohibit this type of specific exclusionary language, regardless of the same sex marriage decisions, because schools are not allowed to be the "idea police." Schools can certainly choose to promote certain messages, but what they cannot do is intentionally shut down ideas for political or other discriminator reasons, nor can they enact overly broad and vague restrictions on speech that quells protected speech. South Carolina's provision would appear to violate both principles. Just this year, the Ninth Circuit followed this exact reasoning in striking down Arizona's ban on ethnic studies in Arce v. Huppenthal.
Thursday, August 13, 2015
The New York State Department of Education has issued new guidance on creating supportive and safe learning environments for transgender and gender nonconforming students. This guidance is an implementation of both federal law and New York's newly enacted Dignity for All Students Act (“DASA”). The guidance explains:
Wednesday, July 15, 2015
Chicago Public Schools Enter Agreement with Office for Civil Rights to Ensure Equal Athletic Opportunities for Females
Last week the U.S. Department of Education announced that a settlement had been reached between its Office for Civil Rights and the Chicago Public School District #299 after the National Women’s Law Center filed their initial complaint back in 2010. The agreement mandates that the Chicago school system add athletic opportunities for females in at least 12 high schools in order to comply with Title IX (the anti gender discrimination law in education). The purpose of the agreement is to remedy the stark disparities between enrollment of female students and their participation in high school interscholastic athletics. In Chicago schools, females make up over 51 percent of the student population yet they only represent 41 percent of the districts’ athletes. Males are 58 percent of the athletes. The eleven page detailed settlement requires that the Chicago Public School District comply with the agreement at each District high school and sets up a standard the schools must meet.
Compliance at each high school will be measured by using the three-part test of compliance showing at each school that: 1) interscholastic participation opportunities are provided in numbers substantially proportionate to the respective enrollments of boys and girls; or 2) that the District can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the members of that sex; or 3) that the interests and abilities of the underrepresented sex are fully and effectively accommodated by the present program.
The agreement will go into effect as early as fall 2015 and the Office for Civil Rights will continue to monitor the District’s compliance closely thereafter.
Friday, June 12, 2015
Over the past year and a half, significant movement has happened at the state level to help expand rights for transgendered students seeking to use restrooms that conform to their gender, but somehow the issue had evaded the federal courts. Most notable at the state level, Nicole Maines fought and won a battle in the Maine Supreme Court, relying on the Maine Human Rights Act.
In January of this year, in an effort to federalize this issue, the ACLU filed an administrative complaint against Gloucester County Schools in Virginia on behalf of Gavin Grimm with the Office for Civil Rights at the U.S. Department of Education, presumably arguing that his exclusion from the boy's bathroom violated Title IX. OCR complaints, however, are private and little more than the notice of the complaint came to light at the time. Apparently, the complaint was not resolved to Gavin's satisfaction.
This does not mean that OCR was not on his side. The administrative process is heavily weighted on voluntary compliance, which recent news reports would suggest the School Board would have been unwilling to provide. Gavin had previously been allowed to use the boys' bathroom, but when religious and other concerned groups discovered this, they came out in heavy opposition, leading to an official school board vote banning his use of the boy's restroom. As a side note, it appears the public discourse surround this vote was despicable in its personalized and dehumanizing nature.
The case is now finally moving to federal court, where it is sure to receive enormous attention and set important precedent. See here for more.
Tuesday, May 12, 2015
Abigail Perdue, together with sociologists and psychologists, recently conducted a survey of 364 Virginia Military Institute (VMI) students. The study is now published as Abigail L. Perdue, Transforming "Shedets" into "Keydets": An Empirical Study Examining Coeducation Through the Lens of Gender Polarization, 28 Colum. J. Gender & L. 371 (2015). The goal of this study was to gather empirical data on the impacts of coeducation at the school. Professor Perdue "examine[s] the perceived impact of coeducation, perceptions of why members of the opposite sex attend VMI, pressures to conform to prescriptive gender stereotypes of how feminine or how masculine a cadet should be, and perceptions of an expected adverse reaction to perceived violations of gender boundaries." It has been fifteen years since VMI became coed in the wake of U.S. v. Virginia, and according to this study, many male cadets continue to regard female cadets as intruders rather than peers. As a result, "female cadets often employ gender strategies, such as emphatic sameness, to avoid accepting the demeaning status of feminine 'shedet' within VMI's androcentric and gender polarized environment." However, in doing so, many of these women may be inadvertently forfeiting part of their feminine gender identities. Therefore, Professor Perdue "explore[s] the potential impact of gender polarization . . . on the gender identities of female cadets at VMI by examining student attitude toward coeducation and their perceptions of possible gender boundary violations at VMI." The study utilized Sandra Lipsitz Bern's analytical framework, "which discusses three prisms through which men and women often view one another and the world: gender polarization, androcentrism, and biological essentialism." Gender polarization "refers to the separation of sex and gender into opposite poles representing masculine and feminine domains in order to interpret sex and gender differences," and biological essentialism "refers to the use of biology and science to 'legitimize the sexual status quo.'" In other words, biological essentialism is founded upon biological distinctions to explain the inherent dominance of men and why it is sometimes permissible, even necessary, to differentiate treatment of men and women.
Friday, May 1, 2015
The Office for Civil Rights has released its 2013-2014 report to Congress and the President. From my perspective, past reports have been dense and un-illuminating. This current one strikes a very different approach. First, it is very well written. Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative. Fourth, it is analytical. Fifth, it is visually appealing. Sixth, it implicitly suggests courses of action or concern. Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.
May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)
Tuesday, April 21, 2015
A new report by the National Women's Law Center and the Poverty and Race Research Action Council, Finishing Last: Girls of Color and School Sports Opportunities, finds that
Nationwide, 40 percent of heavily minority schools have large athletics gaps for female students, compared to only 16 percent of heavily white schools. . . . [A]t both the state and national level heavily minority schools typically provide fewer sports opportunities—defined as spots on teams—compared to heavily white schools. Heavily minority schools also allocate these spots less equally between boys and girls, leaving girls of color especially shortchanged. This means that girls of color receive far fewer spots on teams than white girls, white boys and boys of color. The report shows how this lack of access to school sports has long-term consequences for girls’ health, academic success and economic security.
It breaks those numbers down further, showing that females at heavily minority schools have:
- Only 39 percent of the opportunities to play sports as girls at heavily white schools
- Only 67 percent of the opportunities to play sports as boys at heavily minority schools
- Only 32 percent of the opportunities to play sports as boys at heavily white schools
Get the full report and commentary here.
Thursday, April 2, 2015
In Marshall, Michigan, members of the high school's Gay-Strait Alliance recently put up a public display on a hallway bulletin board promoting promoting transgender equality. Their purpose, they say, was to let the LGBTQ community to know they are safe and accepted at school. School policy is to leave information on the bulletin board for two weeks.
Some parents, however, became aware of the bulletin board posting and began complaining to the administration. Shortly thereafter, the school took down the display, before the two weeks had transpired. Kate Samra, president of the Gay Straight Alliance at the high school, said she “met with the principal of my school today and he said he felt like the situation needed to be diffused, so that’s why he did take the board down.” Marshall’s superintendent, Randy Davis, also acknowledged that parental complaints played a role. “We have had complaints once in a while from a parent about that,” he said. “In our environment, it doesn’t feel like there’s any controversy at all; in the world of Facebook, it seems like it’s on fire.”
The bulletin board would seem to have been a public forum. If so, the school could only censor student speech if it created a substantial disruption or was lewd/plainly offensive. Schools cannot censor speech simply because it might generate uncomfortable speech. While we only have sparse facts, the school's intent seems to have been to avoid uncomfortable conversations with parents, not actual disruptions in school. There is no indication that the bulletin posting had caused any disruption within school, but taking it down has set of an entirely new conversation and students are now protesting. If the school thought censoring speech would diffuse the situation, they were mistaken. From the students' perspective, this also suggests a school that is potentially hostile to LGBTQ rights, which could come back to haunt the school should any Title IX harassment claims arise later.
Postscript: My colleague, Josie Brown, also pointed out that a bulletin board is technically part of the facilities and, thus, would be subject to the federal Equal Access Act, which prohibits discrimination in regard to individuals who are announcing or wishing to have meeting. See 20 USC 2071.
Thursday, February 19, 2015
Nearly two years ago, I posted on a bizarre case, Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), in which a student had been sexually harassed by another on multiple occasions. The student apparently had harassed several other students as well. The school's solution was purported to catch the harasser in the act, so that it might exact a full punishment on him. Thus, two teachers convinced the plaintiff to agree to the harasser's proposition to meet him in the bathroom. They notified the principal of their plan. The plan, however, went awry because no one came to the bathroom in time. By the time the teachers arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will. She then filed a lawsuit against the district under Equal Protection, Title IX, Substantive Due Process, and state law.
The trial court rejected her claims. The case has finally made its way to the 11th Circuit Court of Appeals. Because the victim is no longer a minor and her identity has gotten out, the media coverage is beginning to heat up. CNN recently conducted an interview with the victim. As my prior post notes, the precedent on these types of cases is very unfavorable to plaintiffs. If every there were a case to create a crack in that precedent, however, this may be the one.
Thursday, February 12, 2015
D.C. Public Schools chancellor Kaya Henderson recently announced an “Empowering Males of Color” initiative and the district's intent to open a single sex high school for boys in 2017. The purpose of the school would be to focus on the unique educational challenges and needs of Black and Latino boys, whose achievement is the lowest in the district. That plan is now drawing serious criticism and scrutiny. D.C. Council member Mary Cheh has requested that the district's attorney general investigate the legality of the program and the school. Chen, speaking of the potential unfairness to girls, explains:
What I’m saying is that you can’t just do for one group what you’re not doing for another. ... Even if their scores are a little bit better, both groups’ scores are abysmal. ... You have to provide substantially equal opportunities to the other group. That’s all I want. I want all of them to be better off.
Michael Myers, of the New York Civil Rights Coalition, then filed his own letter.
Thursday, February 5, 2015
After two years of a steady stream of negative reports, horror stories, and critiques of the higher education system for dealing with sexual assault on campus, Senators Kaine and McCaskill have introduced preventative legislation that does not apply to colleges at all, but just might be a step in the right direction. Rather than address the problem of sexual assault after it happens, they propose to educate public school students in advance. The Teach Safe Relationships Act of 2015 would require that schools' health education curriculum include education on "safe relationship behavior." As a general matter, federal or state legislation that tinkers with public school education to achieve some broader social policy is a bad idea. Religion cases are rife with examples. Politicians too often use students' education as their playground for political ends. This legislation, however, may be the exception to the general rule. The curriculum would directly relate to the experiences students will face and would seek to give them constructive tools for dealing with it. After all, the ultimate solution to sexual assault on college campuses is not a better due process system, but fewer assaults in the first place. More here.
Wednesday, January 28, 2015
Suzanna E. Eckes, Aaron N. Butler, and Natasha M. Wilson's article, Brown v. Board of Education's 60th Anniversary: Still No Cause For a Celebration, 311 Ed. Law Rep. 1 (Jan. 15, 2015), is now on westlaw. The article discusses how far the United States has come in integrating students and how far it has have left to go to achieve the goal of Brown v. Board. The article begins by presenting a history of "civil rights legislation, constitutional protections, and Supreme Court decisions related to racial integration." Next, the authors turn to more recent court decisions signifying the end, or at least the slowing, of integration in schools. The last two sections discuss other types of segregation and the importance of broad diversity in public schools.
Regarding other types of segregation, the authors cite to cases in which schools had segregated students based on "gender, ability, language, religion, and sexual orientation." Since the 2006 amendments to the Title IX regulations "mak[ing] public single-sex educational programs more accessible in public school[,]" the number of single-sex classrooms and schools has been on the rise. As compared to only three single-sex public education programs in 1995, "[t]oday there are approximately 500 schools in 40 states that offer single-sex classes and 90 single-sex public schools in the U.S." In addition to the spread of single-sex schools across the country, public schools have opened to cater to LGBT students. "These schools are designed to serve as safe havens for LGBT students who have been bullied or harassed in their traditional public schools." However, some have argued that, while sparing LGBT students hurtful and damaging harassment, these separate schools may result in unnecessary segregation.
Finally, some school systems also separate students based on disabilities. An investigation conducted by the Office of Civil Rights recently found that one New Jersey school district had placed over 60% of its students with disabilities into "self-contained classrooms." And these instances of segregation are not limited to traditional public schools. Charter school and voucher programs face similar challenges, from "enthocentric or culturally-oriented niche charter schools" leading to greater racial segregation, to private/religious voucher-receiving schools discriminating against LGBT students, students with disabilities, or religious minorities. The authors conclude by presenting evidence of the harms segregation can cause and the need for integration in schools.
Thursday, January 22, 2015
Last year, the Maine Supreme Court upheld a legal challenge by a transgendered student who argued that her exclusion from the girl's bathroom violated Maine's Human Rights Act. On remand, she was also awarded $75,000 in damages. Earlier this month, the ACLU filed administrative complaints with the Department of Education's Office for Civil Rights and the Department of Justice, alleging that a similar exclusion in the Gloucester County Public Schools in Virginia amounts to sex discrimination in violation of Title IX. Because the Maine case was decided on state law, it had no direct impact elsewhere. A positive finding by OCR, however, would prompt change across all states. OCR has been aggressive in enforcing the law under Assistant Secretary Lhamon, but given the new ground this complaint might break, I would expect this complaint to proceed slowly to allow for careful investigation and deliberation.
Friday, January 16, 2015
The Justice Department filed suit against the Chicago Board of Education in late December, alleging that an elementary school principal discriminated against pregnant teachers in violation of Title VII of the Civil Rights Act of 1964. The complaint alleges that, from 2009 to 2012, a principal at a Chicago elementary school lowered the performance evaluations and moved to terminate eight teachers who announced their pregnancies. The principal also made negative comments to and about pregnant teachers at Scammon Elementary, including: “responding to a teacher's announcement of her pregnancy by saying, “I can't believe you are doing this to me. You are going to be out right before [mandatory] testing!;” asking a Scammon staff member if a teacher who had been pregnant was pregnant again; ignoring a teacher after the teacher announced her pregnancy; ignoring a teacher's request to meet regarding her upcoming maternity leave; repeatedly asking a teacher who was nursing and expressing breast milk questions such as, “That isn't over yet?” and “When will you be done with that?”; and stating that a teacher who requested an accommodation to express breast milk complained too much and was too high maintenance.” The complaint filed December 23, 2014, can be found at United States v. Chicago Board of Education, et. al, 2014 WL 7384980 (N.D.Ill.)
Friday, December 12, 2014
SMU Enters Compliance Agreement with OCR to Correct Title IX Violations in Handling Sexual Assault and Harassment Complaints
The U.S. Department of Education, Office for Civil Rights (OCR), released its findings yesterday that Southern Methodist University (SMU) failed "to promptly and equitably respond to complaints, reports and/or incidents of gender and sexual harassment of which it had notice." OCR's investigation letter is here. OCR investigated three complaints by SMU students between June 2011 and March 2013 alleging gender harassment, sexual harassment, and sexual assault. One complaint alleged that SMU violated Title IX when the school failed to appropriately respond to a male student's report that he had been sexually assaulted by another mail student, and that SMU also failed to protect him from the retaliatory actions of the alleged perpetrator’s fraternity brothers and friends. The victim was subjected to taunting and harassment on campus after reporting the sexual assault. SMU did not conduct its own investigation of the complainant’s sexual assault allegation, and the complainant alleges that the school discouraged him from reporting the incident to off-campus law enforcement. A second complaint was from a former SMU employee who alleged that SMU's policies subjected female students to sexual harassment and staff members who complained were retaliated against. Another complaint involved a SMU law student whose law professor referred to her during class sessions and meetings at his home as a “prom/beauty queen,” “hired bimbo,” “bitchy,” “catty,” and “doody blonde." Although SMU investigated the complaint and required the professor to receive sexual harassment training (but did not require the law professor to write a letter of apology to the complainant), OCR noted that SMU never informed the complainant of the results of its investigation. As part of its compliance agreement with OCR, SMU has agreed to:
- Revise and, following the office's review and approval, finalize its "interim" Title IX grievance procedures.
- Create a pocket-sized card for all SMU employees with information about how to support students who report sexual misconduct and a checklist for staff members who may meet with a student to outline their rights and the resources available; clearer protections against retaliation.
- Develop bystander intervention training.
- Develop a procedure for sharing information between the SMU police and the school's Title IX coordinator.
- Notify students and employees about the university's Title IX coordinators and their contact information in its nondiscrimination notice and in other publications.
- Track harassment reports, investigations, interim measures, and resolutions.
- Train staff and students on the revised university policies and procedures.
- Conduct annual climate surveys.
- Reimburse the law student complainant for university-related expenses and counseling.
Wednesday, December 3, 2014
In January, the Maine Supreme Judicial Court has held that Nicole Maines, a transgendered student who is biologically male but identifies as female, has the right to use the girl's restroom. Denying her that right was a violation of Maine's Human Rights Act. Maine's supreme court was the first to ever rule in favor of a transgendered student on this issue.
The case was remanded to the trial court for damages. Yesterday, the court ordered the district to pay Nicole $75,000 in damages. This clear cut victory should serve as serious warning for other districts, at least, in Maine.
Monday, December 1, 2014
Below is the introductory letter and new guidance on single sex education from the Department of Education:
Today, the U.S. Department of Education's Office for Civil Rights (OCR) released guidance for K-12 schools that offer or want to offer single-sex classes. In response to numerous inquiries about the legality of single-sex classes, OCR issued guidance that charts a path for schools on how they can provide boys-only or girls-only instruction while remaining in compliance with civil rights laws.
Over the past year, there has been a tremendous amount of discussion on this blog (e.g., here, here, here, and here) and elsewhere about how schools prosecute and prevent rape, as well as deal with its aftermath. The law applies to all schools that receive federal funds, but the conversation has focused almost exclusively on colleges and universities. Last week, students in Oklahoma revealed how the problem can play out in public high schools.
Three students in Norman Public Schools accused a male classmate of sexually assaulting them. The school acted swiftly to remove the male student from school. The students' complaints, however, are in regard to the environment that developed afterward. They say that the alleged assailant's friends have now begun bullying them and it has not stopped. As a result, they withdrew from Norman High School. Now hundreds of other students have come to the girls defense, stagging a walkout protest last week. Whether there was a hostile environment and the school failed to adequately respond remains to be seen, but these students, like those concerned with curriculum issues in Colorado, have certainly found a way to shine a spotlight on the issue.
Monday, October 20, 2014
The U.S. Department of Education published the final regulations for the Violence Against Women Reauthorization Act of 2013 (VAWA) amendments to the Clery Act today. Below is the Clery Center's summary of college campuses' expanded obligations to report, investigate, and resolve incidents of sexual assault, domestic violence, dating violence, and stalking under the new regulations, which require colleges to:
- agree on the law enforcement agencies that will investigate alleged criminal offenses;
- include statements in campus written policies about sexual assault, domestic violence, dating violence, and stalking;
- provide prevention and awareness programs for incoming students and new employees and provide written information to victims;
- allow victims and accused persons to have an advisor, including an attorney, accompany them to meetings;
- establish procedures to follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported; and
- set procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking;
- disclose in their annual statistics the total number of crimes that were "unfounded”;
- include gender identity and national origin as two new categories of bias for a determination of a hate crime; and
- use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology.
Tuesday, October 14, 2014
Justice Department Intervenes in Case of Female Student Who Was Sexually Assaulted While Being Used as "Bait" to Catch Male Student Suspected of Sexual Misconduct
The Department of Justice filed an amicus brief at the Eleventh Circuit Court of Appeals last month in the case of a female special needs student who was used as "bait" to try to catch a male student suspected of sexual misconduct at an Alabama middle school. In the case, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to agree to a plan to enter a bathroom with a 16-year-old male student with a history of sexual and violent misconduct. According to the plan, other teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. The plan was devised to gather proof after the school received reports of the 16-year-old trying to convince girls on the school's "special needs corridor" to have sex with him. The school also had some reports of sex attacks by the male student, but the number is unknown as the school had a policy of destroying documentation of reported attacks later found to be "uncorroborated." The female student was initially reluctant to participate in the plan, but was eventually persuaded by a teacher's aide, June Simpson. Tragically, when the female student met the 16-year-old in the bathroom, no teachers were present to intervene, and the student was violently sexually assaulted. Because there was authorities decided that there was no proof of a forcible assault because the female entered the bathroom voluntarily (although the student was found to have anal bleeding and tearing), the male student was not prosecuted. (He was suspended for five days, but later returned to Sparkman.) One school administrator later testified in a federal court that the female student was "responsible for herself" once she entered the bathroom.
The female student withdrew from school and sued the Madison County school district in federal court. Last December, the district court granted summary judgment for the school district, concluding that school administrators lacked actual notice of sexual harassment and misconduct by the male student and that administrators were not deliberately indifferent to male student’s history of sexual and violent misconduct under Title IX. The student appealed. The DOJ has intervened as amicus on appeal challenging the district court's findings. In its brief, the DOJ takes the school system to task for its policy of destroying records of proven offenses by a student after the close of a current school year and all complaints found to be unsubstantiated regardless of when they occurred. "As a result," the DOJ brief notes, "school administrators could not consider patterns of prior accusations and were forced to rely largely on memory, which they admitted was “flawed” when deciding appropriate corrective measures for repeat offenders[.]" Read the DOJ brief here.