School District Need Not Accommodate Coach’s Request to Publicly Pray at Football Games

October 2017
Number 58

A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled inKennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf&gt;. The court found that the District did not violate the coach’s First Amendment rights by placing him on administrative leave for refusing to cease his demonstrative prayer after football games.

Background

Joseph Kennedy coached football in the Bremerton School District from 2008 to 2015. During his first coaching season, Kennedy began praying at the end of each football game. After a few games, players started to join Kennedy. Eventually, Kennedy began giving short motivational speeches with religious content following each game.

In September 2015, the District learned of Kennedy’s prayers and speeches and asked him to limit his speeches to non-religious topics to avoid offending any players. The superintendent told Kennedy he could still engage in private, non-demonstrative prayer.

Following the District’s request, Kennedy began giving non-religious post-game speeches and praying only after everyone had left the stadium. After several weeks of this practice, Kennedy asked the District to allow him to resume praying on the field after each game. The District reiterated that Kennedy could pray in private before or after the games, but that he could not engage in demonstrative religious activity observable by students and the public attending the games. Kennedy refused to comply with the District’s instruction and engaged in demonstrative prayer during the next two games. The District placed Kennedy on paid administrative leave. The football players did not continue to pray on their own after the football games.

Several months later, Kennedy sued the District, asking the trial court to require the District to reinstate him as a football coach and allow him to pray on the 50-yard line immediately after each football game. The Ninth Circuit upheld the trial court’s ruling that the District did not did not have to reinstate Kennedy or permit him to engage in demonstrative public prayer immediately after the games.

Takeaways

Public employees retain their First Amendment free speech rights when speaking as private citizens. But “when public employees make statements pursuant to their official duties,” the United States Supreme Court held in its landmark 2006 ruling in Garcetti v. Ceballos, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In Kennedy, the Ninth Circuit found that Kennedy spoke as a public employee-and not as a private citizen-because he prayed “immediately after games while in view of parents and students.” The court found that this activity fell within the scope of Kennedy’s official duties because in his role as a sports coach, Kennedy served as a mentor and role model for student athletes.

The Ninth Circuit’s ruling highlights that a public school may limit demonstrative religious speech of an employee who serves as a student mentor and role model. The court suggested that this same rule applies to teachers, and this analysis also likely applies to counselors and other employees who serve as role models to students. Nevertheless, the court indicated that a public school employee has the right to pray or otherwise practice religion while in private, even if on school grounds.

Kennedy does not address whether a district may limit religious speech of other employees (janitors or cafeteria workers, for example) who have more limited and discrete interactions with students. Additionally, while one
judge wrote separately to explain his view that the District could limit Kennedy’s public prayers to avoid the appearance of endorsing a particular religion, Kennedy does not address whether a district violates the
Establishment Clause by permitting or failing to limit an employee’s demonstrative religious speech.

If you have any questions about the Kennedy decision or employees’ religious speech rights 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:

Sloan R. Simmons

Partner & Co-Chair

Alyssa R. Bivins

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.

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Significant New Title IX Guidance on Handling Sexual Misconduct: What Schools Need to Know

October 2017
Number 56

New guidance on schools’ responsibilities for addressing claims of sexual misconduct under Title IX places greater emphasis on the rights of those accused of sexual misconduct. The new guidance marks a significant departure from prior guidance but lacks details, creating the potential for many issues requiring legal consultation.

On September 22, the United States Department of Education issued interim guidance on schools’ responsibilities in addressing sexual misconduct and rescinded a 2011 Dear Colleague Letter (DCL) and a 2014 Q&A document, which were both intended to provide more support for those making sexual misconduct complaints. The Department plans to go through a notice and comment period before putting new, permanent guidance in place.

Separately, California lawmakers are seeking to return to the standards laid out in the 2011 DCL in Senate Bill (SB) 169, which was approved by the Legislature and is awaiting Governor Jerry Brown’s signature or veto. If the bill is signed, educational institutions may wish to consult with legal counsel regarding potential conflicts between federal guidance and state law.

Title IX and Sexual Misconduct

Title IX requires educational institutions, including school districts, county offices of education and community college districts, to do the following:

  • Designate a Title IX coordinator to accept reports of sexual misconduct and to oversee Title IX compliance;
  • Investigate and respond to allegations of sexual misconduct involving students;
  • Prior to investigating a complaint, offer assistance to complainants such as counseling, medical services and class schedule modifications;
  • Provide both parties with an equal opportunity to present evidence;
  • Notify parties of the outcome of the complaint; and
  • Take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects.

What Does the Interim Guidance Do?

The interim guidance, released as a Q&A document (2017 Q&A), changes how the Department will evaluate whether schools’ procedures satisfy Title IX’s procedural requirements. For example, it could loosen the time frame for investigating sexual misconduct claims and raise the standard of evidence required to prove them. It may also provide new rights for the accused, including the right to interim measures (described below) and written notice of the accusations against them.

Interim Measures

The 2017 Q&A makes it clear that interim measures must be extended, as appropriate, to both accused and complainants. Interim measures are temporary measures that are put into place to stop sexual misconduct, protect involved parties and preserve the integrity of the investigation. The 2014 Q&A had emphasized interim measures that avoided impact to the complainant’s educational environment. The 2017 Q&A states that interim measures should “avoid depriving any student of his or her education” and that “a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party.” The 2017 Q&A does not provide specific examples for evaluating the appropriateness of interim measures, but the revised wording and enhanced focus on the rights of the accused suggest that the Department may be more critical of procedures that do not give equal consideration to the interim needs of the accused and the complainant.

Investigation Time Frame

The 2017 Q&A provides that there is no fixed time frame in which schools are expected to complete an investigation. As a result, the suggested 60-day “safe harbor” period contained in the withdrawn guidance will apparently no longer be the bar against which the promptness of investigations is measured. Instead, while schools must still establish reasonable timelines, whether an investigation was in fact conducted timely will be measured on a case-by-case basis. Schools should be mindful of timelines that may apply to sexual misconduct complaints under their internal policies and state law, including the Uniform Complaint Procedures and Title 5 of the California Code of Regulations.

Disclosure of Information and Confidentiality

The 2017 Q&A provides that initial disclosures regarding allegations of sexual misconduct should be made to the accused if an educational institution initiates an investigation. The disclosure should be in writing and should include:

  • The identities of the parties involved;
  • The specific section of the code of conduct allegedly violated;
  • The precise conduct allegedly constituting the potential violation; and
  • The date and location of the alleged incident.

The 2017 Q&A does not include procedures that would allow a complainant to request confidentiality. However, the Department’s 2001 Revised Sexual Harassment Guidance, which remains in effect, provides that the institution should consider a student’s request for confidentiality and evaluate the request in conjunction with its duty to provide a safe environment for all students. Educational institutions should consult with legal counsel prior to issuing this type of written notice to a responding party in cases where a student has requested confidentiality.

Informal Resolution and Mediation

The 2017 Q&A clarifies that informal resolution of complaints, including through a mediation process, may be deemed appropriate by a school if the parties involved agree to such a voluntary resolution after receiving full disclosure of the allegations and options for formal resolution. The 2011 DCL had expressly stated that mediation was not appropriate in cases of alleged sexual assault. The new guidance appears to grant schools discretion, with the consent of both complainant and accused, to use mediation even in cases of alleged sexual assault.

Standard of Proof

The 2017 Q&A provides discretion to educational institutions regarding the standard of proof to use in making findings of fact. Educational institutions may choose to apply either a preponderance of the evidence standard (i.e., more likely than not) or a more rigorous clear and convincing evidence standard (i.e., substantially more likely than not). While an educational institution has the discretion to apply either standard, the 2017 Q&A provides that the standard selected for Title IX investigations should be consistent with the standard the school applies in all other student misconduct cases.

Written Reports/Notice of Findings of Fact

The 2017 Q&A provides that a written report summarizing the relevant evidence should be completed at the conclusion of each Title IX investigation. No specific guidance is provided in the 2017 Q&A regarding notice to the parties of the factual findings resulting from the investigation, other than to state that notice is required and that parties must have timely and equal access to any information that will be used during disciplinary proceedings that follow.

Disciplinary Hearings

The 2017 Q&A makes it clear for the first time that the investigation report must be offered to both parties if it will be used during any informal or formal disciplinary meeting or hearing, and that the parties should be given the opportunity to respond to the report in writing in advance of the decision of responsibility or a hearing to decide responsibility. The Department had not previously issued any guidance related to the disclosure of an investigation report in Title IX matters.

Educational institutions still have the option to offer the right to appeal the decision on responsibility and/or any disciplinary decision to both the complainant and the accused, though the 2017 Q&A permits schools to limit the right to appeal only to the accused. Similar to prior guidance, the 2017 Q&A recommends that written notice of the outcome of disciplinary proceedings be issued to both parties concurrently.

Going forward, the Department has said that in addition to the 2017 Q&A, schools may continue to rely its 2001 Revised Sexual Harassment Guidance as well as its 2006 DCL on Sexual Harassmentas it solicits input on new, permanent guidance. Additionally, any existing resolution agreements that educational institutions entered into with the Department’s Office for Civil Rights will not be impacted by the change in guidance and will continue to be binding.

For questions about the significant changes made by the new guidance or Title IX obligations to address sexual misconduct 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:

Michelle L. Cannon

Partner

Trevin E. Sims

Partner & Co-Chair

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.

California Department of Education Issues Dyslexia Guidelines

September 2017
Number 50

The California Department of Education (CDE) has published new guidelines for serving students with dyslexia. The California Dyslexia Guidelines can be found here.

Assembly Bill (AB) 1369, which became effective on January 1, 2016, required the CDE to develop and disseminate the guidelines in time for use no later than the beginning of the 2017-2018 school year.

The guidelines are not mandatory, but they offer practical methods to identify and comprehensively assess students with dyslexia that are likely to assist local educational agencies (LEAs), including school districts and county offices of education, in complying with the “child find” mandate of the Individuals with Disabilities Education Act (IDEA) to identify, locate and evaluate all children with disabilities to ensure that they receive special education and related services if they qualify.

In addition to practical methods to identify students with dyslexia the guidelines also contain tools for comprehensive assessments and evidence-based interventions. Advice and tools offered in the guidelines include:

  • Universal screenings, beginning in kindergarten and continuing each year, increase the likelihood of early identification of and intervention for students with dyslexia. The guidelines’ extensive list of dyslexia characteristics, broken down by age group and grade level, will support classroom teachers in screening for students with dyslexia.
  • Assessments must cover essential reading, writing and spoken language areas, such as phonological awareness, encoding, reading comprehension and rapid naming. Speech and language pathologists and school psychologists can refer to the guidelines’ appendix of assessment tools and instruments to measure students’ phonological processing abilities when they assess for special education eligibility.
  • In addition to practical instruction on teaching methods, the guidelines suggest various accommodations and assistive technology that may help students with dyslexia fully participate in the classroom.
  • The guidelines also note that a student who has dyslexia does not necessarily need special education or related services and is not automatically eligible for services. However, the guidelines remind LEAs not to delay evaluating a student for special education eligibility if the LEA suspects or has reason to suspect that the student has dyslexia and needs special education as a result.

As the new academic year begins for schools across California, it is a good time to review the eligibility criteria for specific learning disability, with special attention paid to phonological processing and dyslexia. The
guidelines provide an opportunity for school districts to identify students who are struggling, provide interventions and ensure compliance with laws protecting students with disabilities.

If you have any questions about the California Dyslexia Guidelines or special education 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:

Anahid Hoonanian

Senior Counsel

Vivian Chen

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.

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.