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Latest from Husch Blackwell LLP

On April 28th, the Supreme Court of the United States heard oral arguments in Mahanoy Area School District v. B.L., a student free speech case that every public school district in the country needs to be watching. Background This situation arose with a Snapchat message posted while off campus by a then 14-year old girl on a Saturday following the announcement of the results of cheerleading tryouts.  That girl (“B.L.”) had been placed on the junior varsity team for her sophomore year of high school, despite an incoming freshman making the varsity squad. Her anger over that decision resulted…
On February 12, 2021, the Department of Education (“the Department”) and the Centers for Disease Control and Prevention (“CDC”) released guidance to support school and district leaders and educators to safely reopen elementary and secondary schools. The guidance focuses on how schools can consistently implement mitigation strategies during all school-related activities to successfully reopen schools and keep them open. To support this strategy, the Department released the COVID-19 Handbook (“the Handbook”), which is being released in two volumes, provides strategies to keep schools open and identifies ways to promote equity for communities of color and people with disabilities/chronic conditions who…
On November 11, 2017, various groups of parents and several individuals filed suit in federal district court in Oregon challenging Dallas School District No. 2’s policy of accommodating transgender students’ requests to use sex-segregated school facilities on the basis of their gender identity. Background & District Court Decision  Pursuant to its Student Safety Plan, the Dallas School District No. 2 acknowledged a student as a transgender male and permitted him to use the locker room and bathroom that corresponded to his gender identity. The Student Safety Plan also provided that all staff would receive training and instruction regarding Title IX…
On May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which have a significant impact on schools all across the country—both K-12 and higher education institutions. This post identifies some of the key differences between requirements for K-12 and higher education institutions, as provided in the final regulations and related comments from the Department. Interested in learning more? Join us December 3 and 4, 2020, for two half-day training sessions on Sexual Harassment and Sexual Assault in K-12 Schools – Title IX Compliance and Response to New Regulations. Register here…
Key Points The ministerial exception protects religious employers from government interference in internal employment disputes involving the selection, supervision, and removal of individuals who play an important role relative to the core mission of the institution. To determine whether the ministerial exception applies in a specific case, courts must assess the nature of the duties or functions performed by the employee for the religious institution. Employees of religious institutions who are designated as performing functions vital to the core mission and that fall within the scope of the ministerial exception cannot pursue an employment claim. The Supreme Court stated: “When…
On June 30, 2020, the Supreme Court, in Espinoza v. Montana Department of Revenue, ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools. Background of Espinoza Case The Montana Legislature established a program that granted tax credits to people who donated to organizations that award scholarships for private school tuition. However, the Montana Constitution contains a “no-aid provision” that prohibits government aid to flow to any school “controlled in whole or in part by any church, sect, or denomination.” To reconcile the program with this state constitutional provision, the…
On this day in 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law and on May 6, 2020, the U.S. Department of Education (“ED” or “the Department”) released the long-anticipated final Title IX regulations, which will have a significant impact on schools all across the country. This post identifies some of the key takeaways from the final regulations and related comments from the Department. Below are hyperlinks to the high-level conceptual elements and requirements regarding the process from the regulations. Table of Contents Key Conceptual Elements of the Title …
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Background On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in response to the Novel Coronavirus Disease 2019 (“COVID-19”). See H.R. 748. The CARES Act appropriated approximately $30.75 billion to create an Education Stabilization Fund (“ESF”) to provide emergency funding for several education programs—including public K-12 schools, charter schools, and some private K-12 schools—in response to COVID-19. Allocation of ESF grants is statutorily tied to the allocation formulas established in Title I of the Elementary and Secondary Education Act (“ESEA”). Using informal guidance, the U.S. Department of Education (“ED” or “the Department”)…
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On May 19, 2020, the CDC released considerations for schools to supplement any state or local regulations with which schools must comply.  In general, the more humans interact, and the longer the interaction, the higher the risk of COVID-19 spread.  While the lowest risk is students and teachers participating in virtual-only classes, activities, and events, there are precautions schools may follow to help minimize risk to the school community.  Those precautions include personal prevention practices like handwashing, developing new policies, modifying school layouts, and preparing for when someone becomes ill. Hand Hygiene and Respiratory Etiquette Schools should teach and reinforce…
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The outbreak of the novel coronavirus (COVID-19) has presented unprecedented challenges for public and private educational institutions across the country. As schools evaluate how to move forward, Husch Blackwell and our entire Education team is continually monitoring and responding to federal and state guidance on this issue. We have various resources ready to assist you immediately.  We discuss those resources below and assure you that we will keep them updated as new guidance is issued as the situation evolves. Executive Action In response to the extraordinary public health threat posed by COVID-19, President Donald J. Trump declared a national emergency…
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Title VI Obligations School districts have an obligation under Title VI not to discriminate on the basis of race, color or national origin. They cannot intentionally discriminate – that is, for example, treat African-American students differently than white students on the basis of race – or engage in practices that have a disparate impact on students of a certain race without having a substantial legitimate justification necessary to its educational mission. In addition, school districts also have an obligation to address student-on-student harassment or discrimination.  Specifically, they must prevent or address any peer-to-peer racial harassment that is sufficiently serious as…
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A few weeks ago, the United States District Court of Massachusetts issued its long-awaited decision in the lawsuit brought by Students for Fair Admissions, Inc. (“SFFA”) against Harvard University (“Harvard”).  In a 130-page decision, the court found in favor of Harvard, holding that Harvard’s race-conscious admissions process was lawful. After the ruling, SFFA President Edward Blum said in a statement that he was disappointed by the ruling and, “SFFA will appeal this decision to the First [Circuit] Court of Appeals and, if necessary, to the U.S. Supreme Court.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College…
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On September 25, 2019, the U.S. Department of Education, the U.S. Department of Justice, U.S. Department of Homeland Security, and the U.S. Department of Health and Human Services released The Role of Districts in Developing High-Quality School Emergency Operations Plans, which is a guide to emergency operations plans (“EOPs”).  The guide addresses a variety of topics, including the roles and responsibilities of schools, school districts, and community partners regarding school safety, along with prevention and mitigation techniques.  The guide also describes that school districts should coordinate with schools and community partners to make EOPs more collaborative.  The guide details…
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On May 16, 2019, Students for Fair Admissions (SFFA), an anti-affirmative action group, filed yet another lawsuit against the University of Texas at Austin (the University). This is the third such suit SFFA has filed against the University. The new lawsuit alleges the University violates the Equal Rights Amendment of the Texas Constitution by considering race in the admissions process. A similar lawsuit between the parties was dismissed in April due to a lack of standing. Top Ten Percent Plan Texas passed a law in 1997 known as the “Top Ten Percent Plan” (TTPP) which requires public state universities to…
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With the 2019-2020 school year beginning, school personnel must be mindful of changes in the law and best practices related to student health and safety. Interested in learning more? Join us next Tuesday, August 27, 2019, at 12:00pm central time for a complimentary continuing legal education webinar. Register here. VaccinationsOne of the issues we will discuss is vaccinations. Every state has law mandating vaccines for students, but every state also has at least one exemption to mandatory vaccines. The majority of recent vaccination cases arise from challenges to the religious, philosophical, or personal belief exemptions. Schools in each state should stay up-to-date on the…
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The U.S. Supreme Court has agreed to decide whether a federal law prohibiting employers from discriminating because of sex also protects LGBTQ individuals. Background of Pending Cases Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of” that individual’s “race, color, religion, sex, or national origin.” In two consolidated cases—Bostock v. Clayton County and Zarda v. Altitude Express—the Court will decide whether Title VII’s ban on “sex” discrimination also prohibits employment discrimination based on an individual’s sexual orientation. And in a third case—R.G. & G.R. Harris Funeral Homes v. …