Supreme Court Finds Trademark Disparagement Clause Unconstitutional

July 2017
Number 44

The United States Supreme Court has held that trademarks are private speech protected by the First Amendment, even if some find the ideas they express offensive.

In Matal v. Tam (2017) 582 U.S. ___, the Court held the Lanham Act’s disparagement clause to be unconstitutional because it discriminated based on a viewpoint. The Court, noting that the First Amendment is a bedrock principle of government, wrote that the public expression of ideas may not be prohibited merely because some may find the ideas offensive.

In Matal, a dance-rock band named the The Slants applied for federal trademark registration of the band’s name. The application was denied under the Lanham Act’s disparagement clause because the band name is a derogatory term for individuals of Asian descent.

The Court concluded that trademarks are private speech protected by the First Amendment, not government speech, since concluding otherwise would mean the government could silence or muffle expression of disfavored viewpoints by simply affixing a government seal of approval such as a trademark. The Court also rejected the contention that the disparagement clause is commercial speech.

In holding that denial of the trademark application was an unconstitutional bar on private speech, the Court rejected the notion that a trademark is a form of government subsidized speech because the Patent and Trademark Office does not pay money to parties seeking registration of a mark – an applicant for registration must pay a filing fee. The Court also struck down the argument that the disparagement clause is constitutional under a “government program” doctrine which is based on a merger of government speech and subsidy cases.

School districts should keep in mind that staff and students have a right to freedom of speech while on school grounds, subject to certain limitations. Therefore, before regulating the speech of a student or a staff member, districts should ensure that the regulation is not based on the content of the viewpoint being expressed, even if that viewpoint might be offensive to the school board or others in the school community. As a general rule, districts should assume that the speech is lawful and then do a careful analysis to determine if the speech can be regulated before acting.

For more information on the Matal case or on free speech issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michael E. Smith

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Removes Restriction on Funding Student Field Trips

July 2017
Number 43

A bill signed by Governor Jerry Brown on July 10 allows school districts to pay the expenses of students participating in field trips or excursions to other states, the District of Columbia or a foreign country. Assembly Bill (AB) 341 goes into effect on January 1, 2018.

Education Code section 35330(b)(3) currently prohibits the use of school district funds to pay the expenses of a student participating in a field trip or excursion to any other state, the District of Columbia or a foreign country. The bill deletes this provision.

The bill notes that the Local Control Funding Formula identifies student engagement as a state priority that local school districts must address and says that out-of-state travel increases student access to educational opportunities, including competitions and televised events.

Until the bill goes into effect, school districts wishing to use district funds to cover students’ out-of-state or country travel expenses must obtain a waiver from the State Board of Education. Since 2011, the State Board has approved eight waivers authorizing a school district to pay a student’s out-of-state or country field trip expenses, the bill says.

In order to reflect this new authority, school districts may need to update their board policies and administrative regulations.

If you have any questions regarding use of school district funds for educational out-of-state and international travel, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Travel Ban Does Not Apply to Local Agencies

July 2017
Number 41

A California law that bars state agencies from funding travel, and from requiring employees to travel, to states that permit discrimination on the basis of sexual orientation, gender identity or gender expression – and Attorney General Xavier Becerra’s recent expansion of the list of states covered by the ban – have raised questions regarding whether the law applies to cities, counties, school districts and community college districts.

While there is no definitive legal guidance on the issue, the law expressly applies to state agencies, departments, boards, authorities and commissions, including the University of California and the California State University system. As “state agencies,” it appears the law also applies to the California Community Colleges Chancellor’s Office and the California Department of Education. AB 1887 does not state that it applies to cities, counties, school districts or community college districts, nor do these entities appear to be state agencies under the law.

The acting general counsel of the California Community Colleges Chancellor’s Office agrees: In a June 29 legal update, he said that while the restrictions apply to the chancellor’s office itself, community college districts are local education agencies that are not covered by the ban. Still, the letter cautioned local community college districts that the chancellor’s office may not be able to approve a request for state-funded travel to any of the states covered by the ban.

Effective January 1, 2017, Government Code section 11139.8 (enacted by Assembly Bill (AB) 1887) prohibits California state agencies, departments, boards, authorities and commissions from requiring any state employees, officers or members to travel to other states that permit discrimination on the basis of sexual orientation, gender identity, or gender expression and also, from approving a request for state-funded or state-sponsored travel to a state that has passed such a law.

AB 1887 prohibits travel to any state that has enacted a law after June 26, 2015 that voids or repeals existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression or permits discrimination against same-sex couples or their families on those bases.

The original list of states covered by the ban included Kansas, Mississippi, North Carolina and Tennessee. On June 22, Becerra added Alabama, Kentucky, South Dakota and Texas to the list after those states approved laws that permit such discrimination.

Exceptions to the travel restrictions include:

  • Enforcement of California law, including auditing and revenue collection;
  • Litigation;
  • To meet contractual obligations incurred before January 1, 2017;
  • To comply with requests by the federal government to appear before committees;
  • To participate in meetings or training required by a grant or required to maintain grant funding;
  • To complete job-required training necessary to maintain licensure or similar standards required for holding a position, in the event that comparable training cannot be obtained in California or a different state not subject to the travel prohibition; and
  • For the protection of public health, welfare or safety, as determined by the affected agency, department, board, authority, commission or legislative office.

If local government agencies intend to use state grant money for travel to any of the states covered by the ban, they should check to determine if the travel restrictions are included as a condition of the grant. In addition,
local agencies may have adopted their own policies that mirror AB 1887.

Additional information about AB 1887 and the states the travel ban applies to is available on the Attorney General’s website. For more information on AB 1887, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Stephanie M. White

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

IDEA Regulations Amended to Align with ESSA

July 2017
Number 37

The United States Department of Education has released amended regulations implementing Parts B and C of the Individuals with Disabilities Education Act (IDEA) intended to align the Act’s terminology with that under the Every Student Succeeds Act of 2015 (ESSA). The amended regulations, which were released on June 30, are effective immediately. A copy of the new regulations can be found here.

Most of the changes will not significantly affect the day-to-day practices of local education agencies (LEAs), and are not expected to affect LEA costs.

The IDEA was reauthorized in 2004 after adoption of the No Child Left Behind Act (NCLB). The NCLB was superseded by the ESSA in 2015.

A summary of substantive amendments to the IDEA regulations includes:

  • Change in the definition of “regular high school diploma” to exclude diplomas based on alternate academic achievement standards, general equivalency diploma, certificate of completion or attendance or other credential;
  • Listing of special education teacher qualification requirements in § 300.156(c);
  • Addition of specific references to the rules in ESSA that provide comprehensive trainings and support, such as professional development, for teachers of students with special needs;
  • Alignment of requirements for assessments based on alternate academic achievement standards with those under ESSA, such that these assessments are limited to “children with the most significant cognitive disabilities”; and
  • 2016-17 is the last school year for which states may report on the results of children with disabilities taking alternate assessments based on grade-level achievement standards.

A summary of technical amendments to the IDEA regulations includes:

  • Change in the definition of “charter school” to reference the definition under the ESSA;
  • Removal of the terms “core academic subjects,” “highly qualified special education teachers,” “scientifically based research;” and
  • Changes “limited English proficient” to “English Learner.”

If you have questions regarding these new regulations or other special education obligations, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jessi T. Gasbarro

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

OCR Issues New Instructions on Transgender Student Complaints

July 2017
Number 36

The U.S. Department of Education’s Office for Civil Rights (OCR) has issued new instructions to its regional directors regarding how to handle complaints involving transgender students. The document is intended to offer OCR staff additional guidance in light of recent court developments and the Trump Administration’s withdrawal of the Obama Administration’s guidance on transgender students. (See 2017 Client News Brief No. 9.)

The instructions affirm that transgender students still have federal protections against discrimination, bullying and harassment and urge OCR investigators to “approach each case with great care and individualized attention” before dismissing and to look for a permissible jurisdictional basis for OCR to retain and pursue a complaint. They direct OCR staff to rely on Title IX regulations, federal court decisions and other OCR guidance in evaluating complaints of sex discrimination, whether or not an individual is transgender.

The instructions describe five scenarios in which OCR has jurisdiction over complaints involving transgender students, including:

  • Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination;
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment;
  • Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment;
  • Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention; and
  • Different treatment based on sex stereotyping.

Notably, failure to allow students to use the restroom consistent with their gender is not on the list. In fact, the instructions offer restroom access as an example of a type of case that might be dismissed. This is a clear shift in the approach set out in the Obama Administration’s guidance, which required schools to allow transgender students access to bathrooms and locker rooms according to their gender identity.

Regardless of whether the instructions clarify the federal government’s stance on transgender students’ rights, pending a final judicial opinion interpreting federal laws, California school districts must continue to comply with the state’s heightened anti-discrimination restrictions under California law. Since January 1, 2014, California’s Assembly Bill (AB) 1266 has required that students be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity, irrespective of the gender listed on a student’s records. (See 2014 Client News Brief No. 14. ) Other California laws additionally prohibit discrimination against students based on their gender identities.

Schools and local education agencies should ensure they have board policies and regulations which are designed to address the needs and legal rights of both transgender and non-transgender students. For further guidance on best practices with regard to transgender student issues, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sara E. Santoyo

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School Wellness Policies Must be Revised for the 2017-18 School Year

July 2017
Number 35

Local educational agencies (LEAs) that participate in the national school lunch and school breakfast programs must update their school wellness policies to include new requirements for the 2017-18 school year. The requirements were included in regulations finalized by the U.S. Department of Agriculture (USDA) Food and Nutrition Service in 2016.

LEAs that participate in federal breakfast and lunch programs are required to create school wellness policies that describe methods participating schools will use to promote student wellness and to prevent and reduce childhood obesity. The new regulations create a framework and guidelines for revising these policies. The USDA provided guidance on the regulations in an April 6, 2017 guidance document.

According to the guidance document, a school wellness policy must include:

  • Specific goals for nutrition promotion and education, physical activity, and other school-based activities that promote student wellness;
  • Nutritional standards for all foods and beverages available on campus during the school day that are, at a minimum, consistent with federal standards for meals and snacks;
  • Requirements that limit marketing and advertising of foods and beverages to those that may be sold on campus during the day because they meet the wellness policy’s nutritional standards;
  • The identity of the school official(s) responsible for the implementation and oversight of the school wellness policy to ensure each school’s compliance with the policy;
  • A description of how parents, students, the public and specified school officials and employees will be given an opportunity to participate inthe development, implementation and periodic review and update of the
    local school wellness policy; and
  • A description of the plan for measuring the implementation of the local school wellness policy, and for reporting local school wellness policy issues to the public.

LEAs must also assess their schools’ compliance with the policy once every three years. Progress on goals and updates to the policy must be reported to the general public and school community on an annual basis and as part of this assessment process.

The USDA has stated that LEAs must update their school wellness policies by June 30, 2017. Lozano Smith is prepared to assist districts to quickly revise and update their school wellness policies as soon as possible in preparation for the new school year. For guidance on developing appropriate school wellness policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Desiree Serrano

Senior Counsel

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Attorney General Sessions Defines Federal Funding Subject to Withholding Due to Sanctuary Policies

June 2017
Number 27

U.S. Attorney General Jeff Sessions provided clarity on which federal funding would be subject to a withholding for implementing “sanctuary” policies that direct employees to refuse to communicate with, or frustrate communication of immigration status information to, Immigration and Customs Enforcement (ICE) as required by federal law.

On May 22, 2017, the Attorney General issued a memorandum regarding one of President Donald J. Trump’s executive orders that would withhold federal funds from “sanctuary jurisdictions.” The executive order, issued on January 25, 2017, charges the U.S. Attorney General and Secretary of the Department of Homeland Security with ensuring that “sanctuary jurisdictions” are not eligible for federal grants, except as deemed necessary for law enforcement purposes. While the order defines “sanctuary jurisdictions” as those that refuse to comply with 8 U.S.C. § 1373 – which prohibits government entities from restricting or creating policies restricting agencies from communicating immigration status information with ICE – it does not spell out the types of government agencies that will be considered “sanctuary jurisdictions” or the types of grants subject to a potential withholding.

The Attorney General’s memorandum narrows the scope of the executive order to apply only to “federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.”

This memorandum follows a recent decision out of the federal district court for the Northern District of California, which had granted a preliminary injunction halting execution of the executive order’s enforcement provision. In separate lawsuits, both San Francisco and Santa Clara counties challenged the executive order’s enforcement provision as unconstitutional. (County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and County of San Francisco v. Trump, 17-cv-0485-WHO.) The order’s lack of specificity, and President Trump and his administration’s statements, sowed fears among cities, counties and school districts that their policies could result in the loss of millions of dollars of federal funding for everything from law enforcement to special education programs and health care subsidies.

The court agreed with the counties’ argument that the executive order was unconstitutionally vague and did not provide any notice or opportunity for local jurisdictions to provide input. The court agreed that the executive order is unconstitutional because the President lacks the authority to place new conditions on federal funds. The court also held agreed that any conditions for receipt of federal funds must be unambiguous and timely made.

The court drew inferences about the scope of the executive order from the public comments made on television and in press briefings and conferences from the President; his press secretary, Sean Spicer; and Sessions. In particular, the court considered a quote from the President saying he would use “defunding” as a “weapon” so that sanctuary cities would change their policies. In issuing the injunction, the court ruled that these statements erased any doubt that this was a threat of major cuts to federal funding, and that it has caused budget uncertainty within the plaintiff counties. The Attorney General’s memorandum appears to be in direct response to these inferences and significantly limits the risk of implementing these sanctuary laws and policies.

The memorandum and court decision mean that, for now, the federal government may not withhold federal funding from any sanctuary jurisdiction based on the executive order, except for those with federal grants through the Department of Justice or the Department of Homeland Security that had already contained requirements to comply with 8 U.S.C. § 1373. This likely means that many school districts are not intended to and would not be subject to a withholding of federal funding under this executive order.

However, the memorandum states the Department of Justice will continue to point out actions taken by state and local public agencies who are undermining “our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.”

The memorandum comes as state legislators consider laws that seek to protect immigrants and limit the state and local role in enforcement and both state and local government agencies seek to reassure immigrant communities. On April 3, 2017, the California Senate passed and forwarded to the state Assembly a “sanctuary state” bill, Senate Bill (SB) 54, which bars state and local law enforcement agencies from using their resources to conduct immigration enforcement activities. Notably, state and local law enforcement would be prohibited from asking about immigration status and would not be allowed to give ICE access to interview individuals in custody. A related, bill, SB 6, would provide money for legal services for undocumented immigrants.

As we await further guidance, regulations and case law regarding the impact sanctuary policies may have on federal funding, Lozano Smith encourages public agencies to discuss drafting or revising sanctuary or safe haven laws and policies with legal counsel in order to ensure compliance with federal law.

For more information on the executive order, the district court’s decision or adopting compliant policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Joshua Whiteside

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.