In 2022, state and local governments banned 2,571 different books. This is more books than were subject to such bans in the previous three years combined (2,436). Most of these efforts are taken at the local level. Texas’ Restricting Explicit and Adult-Designated Educational Resources (READER) Act marked a departure from this practice and sought to ban books statewide. However, the United States Court of Appeals for Fifth Circuit (the “Fifth Circuit”) recently upheld a preliminary injunction against portions of Texas’ law.

Background on Texas’ Sexual Book-Rating Law

In June 2023, Texas Governor Greg Abbott signed the READER Act, which
Continue Reading In Bed with Book Vendors: Fifth Circuit Upholds Preliminary Injunction Against Texas’ Sexual Book-Rating Law

On November 15, 2023, the U.S. Department of Education’s (“Department”) Office for Civil Rights (“OCR”) released new civil rights data from the 2020-2021 school year, as well as seven data reports and snapshots which provide an overview of that data. OCR also launched a redesigned Civil Rights Data Collection (“CRDC”) website that includes public-use data files, reports, and snapshots, which school districts can use to review their own and other districts’ data, available here.

OCR’s CRDC, a mandatory survey of public schools, provides the federal government and the public with data about the extent to which students have
Continue Reading Civil Rights Data on Students’ Access to Educational Opportunities During the Pandemic Released by U.S. Department of Education

The Biden Administration has made concentrated efforts to address the rise in reports of antisemitic, Islamophobic, and other hate-based or bias-based incidents in schools and on college campuses since the beginning of the Israel-Hamas conflict. On November 7, 2023, the U.S. Department of Education’s (“Department”) Office for Civil Rights (“OCR”) issued a Dear Colleague Letter reminding schools of their legal obligations under Title VI of the Civil Rights Act of 1964 (“Title VI”) to provide all students with a school environment free from discrimination based on race, color, or national origin.

The Dear Colleague Letter states that OCR will
Continue Reading U.S. Department of Education Guidance and Resources about Addressing Discrimination and Harassment on the Basis of National Origin

On August 4, 2023, the Civil Rights Division of the U.S. Department of Justice (DOJ) published in the Federal Register a notice of proposed rulemaking (NPRM), on accessibility requirements for online and app-based services offered by state and local government entities, including public schools, community colleges, and public universities.

According to a press release from DOJ, the purpose of the proposed rule is to make online and app-based services more accessible for individuals with disabilities. The rule also aims to offer clarity to state and local governments as they shift traditionally in-person services onto virtual platforms. DOJ created a fact
Continue Reading DOJ Releases Notice of Proposed Rulemaking on Online Accessibility Requirements

In 2023, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a Fact Sheet on Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Learners (“Fact Sheet”), which is available here. The Fact Sheet provides data showing OCR found that students who are English Learners (“ELs”) have lower participation rates in specialized or advanced programs offered at elementary and secondary schools. OCR noted that schools must ensure eligibility for such programs, such as evaluation and testing procedures, do not screen out ELs because of their limited English proficiency, unless a program requires
Continue Reading OCR Fact Sheet on Ensuring Meaningful Participation in Advanced Coursework and Specialized Programs for Students Who Are English Learners

In April 2023, the U.S. Department of Education’s (Department) released a notice of proposed rulemaking (NPRM) on Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams. The final rule is expected to be released in spring 2024. For highlights from the Department’s NPRM, see our blog post available here.

Last winter, the Department’s Office for Civil Rights (OCR) released three resources to support equal opportunity in athletics under Title IX of the Education Amendments of 1972 (Title IX). OCR designed the documents to help
Continue Reading Anticipating Regulations on Athletics Opportunities Under Title IX: A Look Back at 2023 Guidance from OCR

Husch Blackwell’s Joe Diedrich appeared recently on the Institute for Justice’s Short Circuit podcast to provide analysis in connection with the Seventh Circuit’s ruling in Biggs v. Chicago Board of Ed. The appellate court affirmed the district court’s grant of summary judgment in the case below, a dispute between a fired elementary school’s interim principal and the Chicago Public Schools system.

The plaintiff in the case alleged that the Chicago Board of Education deprived her of her liberty to pursue her occupation as a school administrator without due process when it made stigmatizing public statements about her in connection
Continue Reading 7th Circuit Affirms Chicago Board of Ed Win in Occupational Liberty Case

On April 6, 2023, the U.S. Department of Education released a notice of proposed rulemaking (NPRM), which was published in the Federal Register on April 13, 2023, on athletic eligibility under Title IX. The express aim of the proposed rule is to advance Title IX’s goal of ensuring equal opportunity in athletics. While working with stakeholders to develop the proposed rule, the department learned that there is uncertainty about when and how students who identify as transgender can participate in school-sponsored sports, and the proposed rule seeks to provide clarity for students, parents, and schools. The department provided a fact
Continue Reading Highlights from the Department’s Notice of Proposed Rulemaking Concerning Athletic Eligibility

On May 1, 2023, the Office of Civil Rights (OCR) released its annual report for Fiscal Year 2022. The FY 2022 report focused on civil rights complaints, proactive compliance reviews, technical assistance presentations, and revised policies and regulations. The highlight of the report was the unprecedented surge of civil rights complaints filed with OCR. OCR confronted the highest volume of complaints in its history, receiving 18,804 complaints. OCR resolved a total of 16,515 complaints, the second-highest number in its history. In addition, OCR conducted 100 proactive compliance reviews, published seven sets of resources and guidance, and provided 186 technical assistance
Continue Reading U.S. Department of Education: A Close Look at the Office for Civil Rights Fiscal Year 2022 Annual Report for K-12 Education

School districts often have gender-based dress codes, outlining specific requirements for students such as mandating a particular skirt length for female students or prohibiting muscle shirts for male students. In late 2022, the U.S. Government Accountability Office (GAO) released a report on school dress codes that made multiple findings regarding the disproportionate impact of dress codes on girls and minorities.

GAO estimated that of the 93% of school districts with some kind of dress code or policy, more than 90% of them have rules that prohibit clothing worn by female students. Included in the GAO’s report’s recommendations was a directive
Continue Reading The Intersection of School Dress Code Policies and Title IX

On November 17, 2022, a federal judge in the United States District Court for the Northern District of Florida entered a temporary injunction against portions of Florida’s Individual Freedom Act that restricts how Florida’s public college and university professors present their curriculum and what students can and cannot learn in the classroom. The temporary injunction does not apply to Florida’s K-12 public school teachers.

Background

In December 2021, Florida’s Governor, Ron DeSantis, announced a legislative proposal, which he deemed the “Stop Wrongs to Our Kids and Employees (W.O.K.E. Act), to “fight back against woke indoctrination.” In early 2022, the Florida
Continue Reading Florida Judge Pauses Enforcement of Florida’s Individual Freedom Act

On October 31, 2022, the Supreme Court of the United States (“SCOTUS” or “the Court”) heard oral arguments in two cases challenging the race-conscious student admissions policies used by Harvard University and the University of North Carolina (“UNC”) to promote diverse school enrollments. The final decision in this case likely will be released at the end of the current term—in late June or early July 2023. It could have important implications not only for colleges and universities but also for public school districts.

Background

The case began in 2014, when Student For Fair Admissions (“SFFA”), a nonprofit advocacy organization opposed
Continue Reading Affirmative Action: The Possible K-12 Impacts of the Supreme Court Cases Involving Harvard and UNC

In July 2022, two federal district courts on opposite sides of the country issued opinions that have the potential to have a major impact on non-profits and schools not accepting federal funding throughout the country.

Case Law Background

The first case was before the U.S. District Court for the District of Maryland (Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School) and involved several former students who sued Concordia Preparatory School, a private school, under Title IX of the Education Amendments of 1972 (“Title IX”). The former students alleged that the school failed to adequately address complaints of
Continue Reading Title IX’s Reach May Expand: Application to Non-Profits and Schools Not Accepting Federal Funding

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
Continue Reading Supreme Court to Hear Case on the Continuation of Affirmative Action in College Admissions

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
Continue Reading Livin’ on a Prayer: Supreme Court to Hear Case of Football Coach who Lost Job for Praying

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
Continue Reading What’s in a name?: Federal Court in Indiana Dismisses Teacher’s Religious Discrimination Over the Use of Students’ Preferred Names