Developing Legal Issues
in
the Public Schools
© October, 2015
Presented by
R. Craig Wood
McGuireWoods LLP
GENDER IDENTITY
A growing concern
• LGBT students are invoking equal
protection under A14
• USDOE recognizes “sexual orientation”
and “gender identity” as covered under
Title IX
• Gender identity is a “state of mind” – an
emotional and social identity associated
with a preferred gender which might not
be the same as the birth sex
Gender identity
• The rules and guidelines are very
unclear
• California is the only state to say “treat
every student in accordance with his/her
gender preference for all purposes”
• Includes sports teams, restroom
facilities, cheerleading teams, dress
codes
• Not the rule in Virginia, but the
interpretation OCR is advancing under
the current administration
GLOUCESTER CASE
• The DOE approach was recently
rejected in a federal case involving
Gloucester County Schools
• A more permissive “gender neutral
facilities” approach was upheld
• G.G. v. Gloucester County School
Board, EDVa, September 17, 2015
(Judge Doumar)
Essential facts
• GG was born a female but at an early
age realized he did not “feel like a girl”
• Refused to wear “girl clothes” at age 6
• By 9th grade was getting so stressed out
about his gender identity that he took
classes by home bound instruction
• His psychologist gave him a treatment
plan that said that he should be treated
as a boy in all respects “including with
respect to his use of the restroom.”
Facts
• He started hormone therapy
• He changed his legal name to a
masculine name
• When in public he used male restrooms
• He decided to return to school as a
male
• At first he agreed to use a separate
restroom in the nurse’s office
• Then later decided he wanted to use the
male restroom
School’s response
• The principal agreed he could use the
male restroom, which he did for the first
seven weeks of school in 2014-15
• Some community members disapproved
• The school board heard comment on a
proposed resolution that would have the
effect of returning GG back to the
private facility
• In the meantime, they improved the
privacy in all restrooms and added three
“gender neutral” private restrooms
The Resolution
• Encouraged gender-confused students to
seek adult and professional guidance
• Emphasized the goal of a safe learning
environment for all students
• Emphasized the desire to protect the
privacy of all students
• Required use of the facility corresponding
to the “biological gender,” with “alternative
appropriate private facilities” for students
with gender identity issues
The lawsuit
• ACLU claims violations of Title IX and
equal protection clause
• Separate single-stall restrooms would
stigmatize and isolate him
• They would serve as a reminder that the
school views him as “different”
• Everyone knows the restrooms were
installed just for him
Title IX analysis
• School Board – “sex discrimination does
not include gender identity discrimination”
• GG (ACLU) – yes, it does
• Court – I can answer the Title IX dispute
without deciding that question, because
Title IX when enacted included specific
language that provides for separate
facilities for each sex
• That exception is also found in DOE
regulations
Title IX
• “…nothing contained herein shall be
construed to prohibit any educational
institution … from maintaining separate
living facilities for the different sexes.”
• 20 U.S.C. §106.33
• That exception was further expressed in
DOE regulations
DOE Regulations
• “A [school] may provide separate toilet,
locker room, and shower facilities on the
basis of sex, but such facilities shall be
comparable to such facilities provided
for students of the other sex.”
• 34 C.F.R. §106.33
• DOE’s current interpretation is in conflict
with its own regulations, and “guidance”
(like Dear Colleague letters) do not
trump regulations
The Holding
• §106.33 allows the separation of
bathroom facilities on the basis of
gender, but it does not require sexsegregated bathrooms on the basis of
gender rather than on the basis on birth
or biological sex
Equal Protection
• The court found that there was no equal
protection issue because both sexes
were treated the same, and because by
protecting the “privacy” rights of the
other students, the School Board was
protecting a constitutional right
• Basically weighing one right against the
other, and finding that the privacy right
trumped the equal protection argument
Gay-Straight Alliance Clubs
• Equal Access Act requires schools to
treat student clubs on LGBT issues the
same as other student groups
• Two requirements: 1. club must be
student-initiated; and 2. only applies
when school has “limited open forum”
• LOF does not exist where you have
“curriculum-only” clubs
• Don’t wait until you get a GSA request
to try to eliminate the LOF - retaliatory
What about community backlash?
• Schools cannot deny equal access to,
or discriminate against, students on the
basis of religious, philosophical, political
or other content of speech
• Unpopularity has been rejected by
courts as a legitimate justification to
prevent student speech or association
• Disruptive response in opposition is not
justification – the group itself has to be
actively disruptive
What about staff or outsiders?
• Clubs under EAA must be student
initiated
• Outside community members “may not
direct, conduct, control, or regularly
attend activities of student groups”
• Staff may attend for “custodial”
purposes. But may not control or direct
content
FREEDOM OF INFORMATION ACT
General Assembly studying
changes
• Some advocates for change want to
eliminate the “working papers”
exception
• § 2.2-3705.7. The following records are
excluded from the provisions of this
chapter but may be disclosed by the
custodian in his discretion, except
where such disclosure is prohibited by
law:
Working papers exception
2. Working papers and correspondence of
… the mayor or chief executive officer of
any political subdivision of the
Commonwealth… However, no record,
which is otherwise open to inspection
under this chapter, shall be deemed
exempt by virtue of the fact that it has
been attached to or incorporated within
any working paper or correspondence.
“Working papers” defined
• "Working papers" means those records
prepared by or for an above-named
public official for his personal or
deliberative use.
• Could include notes, spreadsheets, drafts
of organizational charts to do a reorganization of staff, draft budgets, notes
on staff, plans for dealing with particular
situations.
Policy behind 3705.7
“When a particular course of action or public
policy is being explored by government, those
involved in the decision-making process
should be encouraged to put all ideas and
perspectives on the table, even if some of
those ideas might later be discounted as
unworkable or impractical.”
Va. FOIA Council, 2004
You lose the exception if you share
the document
• Any document labeled as a working
paper would no longer be afforded the
protection of the exemption once it was
shared with an outside party
• Absent such a release, a record created
by or for one of the named officials for
his personal or deliberative use retains
the characterization of a working paper
Argument for change
• Public leaders can hide behind the
exemption
• The protection should go away after the
decision is made
• Final reports are FOIA-able, but drafts
and dissenting opinions are protected
Personnel Records exemption
• Personnel records are protected, as is
discussion of personnel matters, which
must be in closed session
• § 2.2-3705.1(1)
• Advocates of change want the
discussion of the performance of top
hires, such as county managers and
school superintendents, to be in public
• “Local governments should give a
reason for firing top officials”
OCR AND MENTAL HEALTH
ISSUES
Suicide Trends
• March 2015 C.D.C. article on suicide
trends in young people aged 10-24
• Suicide is second leading cause of
death among this age group
• 4,700 young people each year die
• 1 out of 6 high school students
contemplate suicide
• 1 out of 13 attempts suicide one or more
times
Depression trends
• Adverse Childhood Experiences
(ACE’s) are major risk factors for
emotional problems
• ACEs contribute to a higher likelihood of
severe emotional disturbance if left
untreated
• 1 in 12 Americans suffers from
depression (CDC, Dec. 2014)
• Only 1/3 of those seek mental health
treatment
Raises 2 Questions for Schools
• Are there federal law obligations to
provide assistance to students with
mental illness?
• If so, what steps should school take?
Section 504
• Rehabilitation Act of 1973
• OCR says that qualifying conditions
include psychological disorders such as
bipolar disorder, major depressive
disorder, or PTSD
• Must screen students through Child
Find process to identify children in need
of services
Child Find
• If a student has a mental health issue
that substantially limits the student’s
ability to have an equal opportunity to
participate in a public sch0ol’s activities,
that student has a 504 disability
• Student must be provided reasonable
accommodations to enable him to
participate effectively at school
Title IX
• Title IX protects students against sexual
harassment and sexual assault
• OCR’s position is that students who
have never been identified as disabled
under IDEA or 504 may, as a result of
sexual harassment or violence,
“develop” a qualifying disability
• Does not matter if the assault occurred
at school – it is the RESULT that is the
concern for this purpose
Title IX
• School should provide appropriate
counseling
• Want to cooperate with social services
when appropriate
• If the parent refuses to allow the child to
be evaluated and counseled, you
should report to DSS as child neglect,
and allow DSS to make the appropriate
determination – but don’t do NOTHING
IDEA
• “Emotional Disturbance” is one of the
IDEA-covered disabilities
• Defined as a “condition exhibiting one or
more of the following over a long period
and to a marked degree that adversely
affects a child’s performance”….
Emotional Disturbance
A. An inability to learn that cannot be
explained by intellectual, sensory or health
factors;
B. An inability to build or sustain interpersonal
relationships with peers and teachers;
C. Inappropriate behavior under normal
circumstances;
D. Pervasive mood of unhappiness or
depression; or
E. Physical symptoms of fear.
So What are the Appropriate
Actions?
A. Create policies, protocols and
procedures
1. Be clear as to who is to do what
B. Educate staff
1. Teachers need to know the warning signs
2. They need to know how to intervene
3. They need to respond actively and quickly
when suicide signs are present
4. They need to involve mental health
professionals at an early stage
What to Do
C. Determine who can be assisted with inschool services, and who needs to
referred outside for professional
assistance
D. Develop a plan for each identified
student
E. Work with the professionals to prevent
a worsening or recurrence of serious
symptoms or suicidal ideation
What to Do
F. Have a referral and crisis plan
1. Make sure staff knows who to contact if a
child exhibits mental health issues or
suicidal ideation
2. Train staff as to warning signs
3. Inform staff how to respond to the student
4. Develop a suicide prevention program or
protocol
Questions?
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