On January 24, 2022, the United States Supreme Court (the “Supreme Court” or the “Court”) granted certiorari in the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA v. Harvard”) case. The Court consolidated SFFA v. Harvard with SFFA v. University of North Carolina (“UNC”) because both lawsuits are being brought by the SFFA and seek to reverse the Court’s 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), upholding narrowly tailored, race-conscious measures to promote diverse student bodies in colleges and universities. The Court has extended the briefing schedule, and merits briefing will be
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Husch Blackwell LLP Blogs
Latest from Husch Blackwell LLP
Livin’ on a Prayer: Supreme Court to Hear Case of Football Coach who Lost Job for Praying
On January 14, 2022, the Supreme Court granted certiorari to determine whether a school district was within its rights in telling a coach not to continue to kneel and pray at the 50-yard line after his team’s games.
Background
From 2008 to 2015, Joseph Kennedy worked as an assistant varsity football coach for a public school, Bremerton High School. As a devout Christian, Kennedy had a practice of kneeling at mid-field to pray immediately after each game. These prayers were usually silent and lasted 30 seconds, but they were in full view of players and spectators. Over time, players began
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What’s in a name?: Federal Court in Indiana Dismisses Teacher’s Religious Discrimination Over the Use of Students’ Preferred Names
John Kluge, a former music and orchestra teacher at Brownsburg Community School Corporation (“BCSC”) allegedly was forced to resign after refusing to refer to transgender students by the names selected by the students, their parents, and their healthcare providers due to the teacher’s religious objections. Kluge identified as Christian and claimed that referring to students by their preferred names would “encourage students in transgenderism” and “promote gender dysphoria,” which went against his religious beliefs that “God created mankind as either male or female.” Initially, BCSC provided Kluge with the option of referring to students using only their last names, but
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Supreme Court Rules on Student Off Campus Speech: Mahanoy Area School District v. B.L.
On June 23, 2020, in an 8-1 decision, the Supreme Court ruled that the Mahanoy Area School District’s decision to suspend a student from the cheerleading team for posting vulgar language and gestures on social media (outside of school hours and away from the school’s campus) violated the First Amendment.
Background
Mahanoy Area School District v. B.L began in 2017, when 14-year old plaintiff Brandi Levy did not make her public school’s varsity cheerleading team. Levy expressed her disappointment on Snapchat by posting a photo where she had her middle finger raised with expletives commenting on the decision. Coaches saw
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Mahanoy Area School District v. B.L. – the student free speech case every public school administrator should know about
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
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U.S. Department of Education Releases Guidance on Safely Reopening Schools
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
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Parents for Privacy v. Barr: Takeaways after Cert. Denial
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
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K-12 Education v. Higher Education in Title IX Compliance: 2020 Regulations
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
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SCOTUS Decision Impacts Discrimination Claims Against Religious Employers
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
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Supreme Court Rules on Religious Schools Case: Espinoza v. Montana Department of Revenue
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
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Title IX: Takeaways from Final Regulations and Comments from the Department
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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Department of Education Issues Controversial Guidance on Distribution of Education Stabilization Funds
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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Centers for Disease Control and Prevention (CDC) Considerations for Schools
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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Federal COVID-19 Resources for Education Institutions
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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More Litigation over Student-on-Student Racial Harassment in School Districts
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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Harvard Race-Conscious Admissions Process is Lawful
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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