Important New USED Guidance on School
Enrollment Procedures, Title IX, FERPA
June 11, 2014
Today’s Presenters
Maree Sneed
Partner,
Hogan Lovells LLP
Michelle Tellock
Associate,
Hogan Lovells LLP
Today’s Agenda
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School enrollment procedures
Title IX/Sexual Violence
FERPA/Uninterrupted Scholars Act
Any other questions?
Ripped from the Headlines
Overview: School Enrollment
Procedures Guidance Package
• Joint effort by U.S. Department of Education and Department
of Justice
• Released May 8, 2014
“Under Federal law, State and
local educational agencies . . . are
required to provide all children
with equal access to public
education at the elementary and
secondary level” – regardless of
“their or their parents’ or
guardians’ actual or perceived
citizenship or immigration
status.”
“[A] State may not deny access to
a basic public education to any
child . . . , whether present in the
United States legally or
otherwise. Denying ‘innocent
children’ access to a public
education . . . ‘imposes a lifetime
of hardship on a discrete class of
children not accountable for their
disabling status’ . . . ”
Behind the Guidance:
The Law
• Title IV of the Civil Rights Act of 1964
– Prohibits discrimination in public elementary and
secondary schools based on race, color, or national origin,
among other factors
• Title VI of the Civil Rights Act of 1964
– Prohibits discrimination based on race, color, or national
origin by recipients of Federal financial assistance
• Plyler v. Doe (U.S. Supreme Court, 1982)
– Prohibits districts from barring students from attending
public school on the basis of their own citizenship or
immigration status or that of their parents or guardians
Overview: School Enrollment
Procedures Guidance Package
• The Guidance Package includes three
resources:
1. Dear Colleague Letter (“DCL”)
•
Replaces the Dear Colleague Letter from May 6, 2011
2. Questions and Answers for School Districts and
Parents
3. Fact Sheet, directed at parents
Dear Colleague Letter:
Legal Background
• The Dear Colleague Letter does not constitute
new regulations
• The Dear Colleague Letter does not add
requirements to applicable law
• Courts would likely show deference to the
Departments’ interpretations and guidance
What the DCL says:
Observations, in brief
• Schools cannot bar students from enrolling in
public schools on the basis of their own
citizenship or immigration status or that of
their parents or guardians
• Schools cannot request information with the
purpose or result of denying access to public
schools on the basis of race, color, or national
origin
What the DCL says:
Observations, in brief
• A district may require documentation to prove
residency* but . . .
Guidance Example
A district may require copies of phone and water bills or lease
agreements to establish residency. While a district may restrict
attendance to district residents, inquiring into students’ citizenship or
immigration status, or that of their parents or guardians, would not be
relevant to establishing residency within the district. A district should
review the list of documents that can be used to establish residency to
ensure that any required documents would not unlawfully bar or
discourage a student who is undocumented or whose parents are
undocumented from enrolling in or attending school.
Exception: Homeless children and youth
What the DCL says:
Observations, in brief
• A school may request data about a student’s
race and/or ethnicity to comply with Federal
or state standards, but a parent’s or guardian’s
refusal to comply with these requests cannot
lead to a denial of a student’s enrollment or
other discrimination against the child
Should districts refrain from asking
for social security numbers?
Guidance Answer
The Federal government does not prohibit school districts
from collecting the SSNs of prospective or current
students. States and local districts must decide, however,
whether they have a legally permissible reason to collect
this information. A district cannot deny enrollment to a
student if he or she chooses not to provide the student’s
SSN. A school district that opts to request SSNs should
make clear in all enrollment and registration documents
that the provision of the child’s SSN is voluntary, and that
choosing not to provide a SSN will not bar a child’s
enrollment.
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How can my district comply
with the Guidance Package?
• Evaluate whether current policies bar,
chill, or discourage school participation
• Evaluate reasons for asking for SSNs or
birth certificates
• Evaluate reasons for asking for race and
ethnicity data
• Analyze enrollment data to see if there
are drops in enrollment that might
indicate barriers to attendance
What additional proactive
steps can my district take?
• Proactively notify parents of their
rights to send children to public
school
– Conduct outreach to inform parents
that all students who are residents in
the district are welcome
• Provide training to staff on how to
avoid violating the law in this area
Ripped from the Headlines
Title IX
• Title IX of the Education Amendments
of 1972 (“Title IX”) prohibits
discrimination on the basis of sex in
federally-funded education programs
and activities
• All public elementary and secondary
schools and school districts receiving
federal financial assistance must
comply
Title IX and Sexual Violence:
USED Guidance
• April 4, 2011 – Office for Civil
Rights (“OCR”) issued a Dear
Colleague Letter on student-onstudent sexual harassment and
sexual violence
• The DCL explained a school’s
responsibility to respond
promptly and effectively to
sexual violence in accordance
with Title IX
Title IX and Sexual Violence:
USED Guidance
• The April 4, 2011 DCL
supplemented OCR’s Revised
Sexual Harassment Guidance,
issued in 2001 (“2011 Guidance”)
• The DCL and the 2011 Guidance
“remain in full force”, but
• On April 29, 2014, USED offered
“additional guidance” in the form
of a 46-page Q&A
Title IX and Sexual Violence:
USED Guidance
• The new Q&A is divided into multiple topics,
including:
A school’s obligation to respond
to sexual violence
Retaliation
Title IX procedural requirements
Responsible employees and
reporting
Confidentiality and a school’s
obligation to respond to sexual
violence
Remedies and notice of outcome
Students protected by Title IX
Investigations and hearings
Interim measures
Appeals
Title IX training, education, and
prevention
Further federal guidance
First Amendment
Responding to Sexual Violence
Guidance Example
How does Title IX apply to student-on-student sexual violence?
Under Title IX, federally funded schools must ensure that
students are not denied or limited in their ability to participate in
or benefit from the school’s educational programs or activities on
the basis of sex. A school violates a student’s rights under Title IX
when the following conditions are met: (1) the alleged conduct is
sufficiently serious to limit or deny a student’s ability to participate
in or benefit from the school’s educational program, i.e. creates a
hostile environment; and (2) the school, upon notice, fails to take
prompt and effective steps reasonably calculated to end the
sexual violence, eliminate the hostile environment, prevent its
recurrence, and, as appropriate, remedy its effects.
Responding to Sexual Violence
Guidance Example
Does Title IX cover employee-on-student sexual violence, such as
sexual abuse of children?
Yes, Title IX protects students from . . . sexual harassment carried out by
school employees. Sexual harassment by school employees can include
unwelcome sexual advances; requests for sexual favors; and other
verbal, nonverbal, or physical conduct of a sexual nature, including but
not limited to sexual activity.
. . . A school should take steps to protect its students from sexual abuse
by its employees. It is therefore imperative for a school to develop
policies prohibiting inappropriate conduct by school personnel and
procedures for identifying and responding to such conduct.
Students Protected by Title IX
Guidance Example
Does Title IX protect all students from sexual violence?
Yes. Title IX protects all students at recipient institutions from sex
discrimination, including sexual violence. Any student can experience
sexual violence: from elementary to professional school students; male
and female students; straight, gay, lesbian, bisexual and transgender
students; part-time and full-time students; students with and without
disabilities; and students of different races and national origins.
Students Protected by Title IX:
Students with disabilities
Guidance Example
What issues may arise with respect to students with disabilities who
experience sexual violence?
When students with disabilities experience sexual violence, federal civil
rights laws other than Title IX may also be relevant to a school’s
responsibility to investigate and address such incidents. Certain
students require additional assistance and support. For example,
students with intellectual disabilities may need additional help in learning
about sexual violence, including a school’s sexual violence education
and prevention programs, what constitutes sexual violence and how
students can report incidents of sexual violence. In addition, students
with disabilities who experience sexual violence may require additional
services and supports, including psychological services and counseling
services. . . .
Students Protected by Title IX:
Students with disabilities
. . . continued
A student who has not been previously determined to have a disability
may, as a result of experiencing sexual violence, develop a mental
health-related disability that could cause the student to need special
education and related services. At the elementary and secondary
education level, this may trigger a school’s child find obligations under
IDEA and the evaluation and placement requirements under Section
504.
A school must also ensure that any school reporting forms, information,
or training about sexual violence be provided in a manner that is
accessible to students and employees with disabilities, for example, by
providing electronically-accessible versions of paper forms to individuals
with print disabilities, or by providing a sign language interpreter to a
deaf individual attending a training.
Confidentiality and a School’s
Obligation to Respond
How should a school respond to a student’s request that his or her name
not be disclosed to the alleged perpetrator or that no investigation or
disciplinary action be pursued to address the alleged sexual violence?
OCR strongly supports a student’s interest in confidentiality in cases
involving sexual violence. There are situations in which a school must
override a student’s request for confidentiality in order to meet its Title IX
obligations; however, these instances will be limited and the information
should only be shared with individuals who are responsible for handling
the school’s response to incidents of sexual violence. . . . In the case of
minors, state mandatory reporting laws may require disclosure, but can
generally be followed without disclosing information to school personnel
who are not responsible for handling the school’s response to incidents
of sexual violence. . . . Regardless of whether a student complainant
requests confidentiality, a school must take steps to protect the
complainant as necessary, including taking interim measures before the
final outcome of an investigation.
Title IX and Sexual Violence:
Stay Tuned
• The White House Task Force to Protect Students
from Sexual Assault issued its first report, entitled,
“Not Alone,” on April 29, 2014
• The first report focuses on sexual
assault at postsecondary
institutions, but the Task Force has
said it will “consider how [its]
recommendations apply to public
elementary and secondary
schools"
Uninterrupted Scholars Act (“USA”)
• Signed into law by President Obama on
January 14, 2013; effective immediately
• Amends the Family Educational Rights
and Privacy Act (“FERPA”) in two ways
• Parts B and C of the Individuals with
Disabilities Education Act (“IDEA”)
incorporate the same protections of,
and are consistent with, FERPA
• USED has not yet amended relevant
FERPA or IDEA regulations
• USED guidance: May 27, 2014
Ripped from the Headlines
What does FERPA require?
• FERPA protects personally identifiable
information (“PII”) from students’ educational
records from unauthorized disclosure
• A school cannot disclose PII from education
records unless:
– Written permission from parents or eligible
(18+) student OR
– Disclosure under an exception
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USA: The FERPA Exceptions
New Exception
Permits educational agencies
and institutions to disclose a
student’s educational records,
without parental consent, to a
caseworker or other
representative of a State or
local child welfare agency or
tribal organization authorized
to access a student’s case
plan “when such agency or
organization is legally
responsible, in accordance
with State or tribal law, for the
care and protection of the
student.”
Amended Exception
Permits educational agencies
and institutions to disclose a
student’s education records
pursuant to a judicial order
without requiring additional
notice to the parent by the
educational agency or
institution, in specified types of
judicial proceedings (i.e., child
abuse and neglect; dependency
matters) in which a parent is
involved.
Applying the Exceptions
Guidance Example
A high school receives a request from the local CWA for all of the
education records relating to certain students who are in foster care
placement. Does the high school have to turn over all of the information,
or just the information that the high school thinks the CWA needs to
see?
FERPA doesn’t require the high school to disclose any education
records to the CWA. However, the USA amended FERPA to permit the
high school to turn over all or part of the education records for the
students who are in foster care placement. The CWA may use these
records to address the students’ education needs. The Department
strongly encourages schools and LEAs to work cooperatively with CWAs
and tribal organizations to ensure that the education needs of students
in foster care placement are adequately addressed.
Applying the Exceptions
Guidance Example
The CWA asks the local school to provide the welfare agency with the
education records on children who are not in foster care placement.
Does the USA allow the school to share education records with the CWA
for this purpose?
No. The USA would permit the school to disclose education records . . .
only to agency caseworkers or other representatives of the CWA who
have the right to access the case plan for children in out-of-home
placement (i.e., foster care placement). The USA exception would not
apply to those children who are not in foster care placement. Thus,
FERPA would not permit the school to disclose education records to the
CWA on students who remain at home and who are not in foster care
placement unless there is written consent of the parent or eligible
student. Thus, FERPA would not permit the school to disclose education
records to the CWA pertaining to those students receiving in-home
services . . .
What does FERPA require?
• If a school discloses education records under
these exceptions, the school must maintain a
record of each request and each disclosure of
PII from the education records of each student.
The record must include:
• The parties who have requested or
received PII from the education
records, and
• The legitimate interests the parties
had in requesting or obtaining the
information
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Questions & Answers
Questions/Concerns
If you seek more information on USED technical
assistance, or would like a copy of this
presentation, please email Sasha Pudelski
(spudelski@aasa.org).
If you wish to receive legal council specific to your
district’s needs, please email (Maree Sneed
maree.sneed@hoganlovells.com) or Michelle
Tellock (michelle.tellock@hoganlovells.com).