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U.S. Department of Education Withdraws Prior Title IX Guidance and Issues Interim Guidance on Sexual Misconduct

College CampusLast Friday, in advance of the public rule-making process concerning schools’ Title IX responsibilities, the U.S. Department of Education rescinded its current Title IX guidance concerning sexual harassment and violence.  Particularly, the Department withdrew its Dear Colleague Letter dated April 4, 2011, and its Questions and Answers on Title IX Sexual Violence dated April 29, 2014.  To assist schools with understanding their obligations concerning investigation and adjudication of Title IX complaints, the Department issued interim guidance in the form of a questions and answers document.

Notably, the new guidance grants schools the discretion to apply a more stringent evidentiary standard—clear and convincing evidence standard—when investigating and/or adjudicating Title IX complaints.  However, the Department noted that the new guidance does not add requirements to Title IX or impact a complainant’s right to make a complaint.  Lastly, the Department made clear that schools may continue to rely on its Revised Sexual Harassment Guidance issued in January 2001 as well as its Dear Colleague Letter on Sexual Harassment issued on January 25, 2006.

We will continue to monitor the forthcoming public rule-making process for Title IX regulations, and provide timely updates of future developments to assist our school clients in complying with Title IX.

The full text to the interim guidance may be found here.

CAS Legal Mailbag Question of the Week – 10/17/2017

Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

I tried to get a police dog into my school on the morning of an overnight, out-of-state field trip so that the dog could sniff student luggage before putting the bags on the buses. I felt the need to do this because I had received an anonymous tip about drug smuggling. When I approached the police, however, they were unwilling to provide the dog. They said that, even though no student would be in the room (cafeteria) and that I was asking them to sniff bags only, those bags were the personal property of the students so they needed probable cause to have the dog sniff the luggage and that my tip was only hearsay.

I accepted the explanation, but I still don’t agree with it. I thought that, on school property, dogs are allowed to sniff bags but not students. Why was my tip inadequate from a police standpoint given the public school environment? In the future, would it be legal to have parents sign a “permission to drug sniff” form or something similar and inform them that failure to sign would mean the student couldn’t attend the trip?

Thank you,
Dog Lover

Dear Dog Lover:

Your police department has many responsibilities, and sending a dog in to sniff luggage at your school may not be on the top of its priority list. I will say, however, that its response to you appears to be an overly cautious approach that fails to recognize the special responsibility that school officials have for student safety.

We start with the premise that the students in your care have the right under the Fourth Amendment to be free of unreasonable searches and seizures. But the courts have recognized that school officials are not subject to the same limitations that apply to the police, given the rights and responsibilities school officials have under the longstanding in loco parentis doctrine to supervise and care for the children in their charge. Specifically, the United States Supreme Court ruled in 1985 that school officials do not need a warrant or probable cause prior to conducting a search. Rather, the standard for a search of students in school is (1) is there reasonable cause for the search at its inception, and (2) is the scope of the search reasonably related to the purpose of the search and not excessively intrusive in light of the age and sex of the students involved. T.L.O. v. New Jersey (U.S. 1985).

To be sure, in their world the police are subject to the probable cause standard they cite. It is necessary therefore to determine the role of the police here. If police officers come into a school as part of a criminal investigation, it is clear that they are acting in their law enforcement capacity, and the higher probable cause/warrant requirements apply. As I understand your plan, however, school officials are seeking the assistance of the police sniffer dog to detect drugs in student luggage. Under these circumstances, it is fair to describe the role of the police and their sniffer dog as a detection aide, analogous to the use of breathalyzers at the prom. As long as you are clear that this is a school administrative matter in which the police are assisting the school, the T.L.O. reasonable cause standard should apply here.

In considering your plan, we start by noting that walking the sniffer dog past the students’ luggage is not a search because you are not intruding into any privacy expectations of the students. Then, if the sniffer dog alerts on a specific piece of luggage, the resulting search will be based on reasonable suspicion (presuming that the sniffer dog knows what he is doing). When courts have reviewed such actions, they have found that such searches conform to the T.L.O. standard and do not violate the Fourth Amendment rights of the students.

Legal Mailbag can also answer your last two questions. First, whether a tip alone constitutes reasonable cause for a search will depend on all the facts and circumstances. In general, an anonymous tip would not constitute reasonable cause unless you have past experience with that anonymous tipper to show that the tipper is reliable. Here, however, any search of the students’ luggage would be based on the alert of the sniffer dog, not the initial anonymous tip.

Finally, when constitutional rights are in issue, school officials cannot require that students (or parents) waive those rights as a condition of participating in a school activity, such as this trip. Thus, a “permission to drug sniff” form is a non-starter. However, by basing any search of student luggage on the reasonable cause provided by the sniffer dog, you won’t have to ask anyone to waive any rights.

Register Now for the 2017 Labor and Employment Fall Seminar

Please join us for our annual fall seminar on November 2, 2017 at the Hartford Marriott Downtown. This promises to be an interesting and informative program regarding recent developments in labor and employment law. Our half-day seminar will include discussions of the timely topics listed here as well as updates on recent legislation and court decisions affecting employers.

Seating is limited, so please register to save your seat today. In the event that we need to limit attendance, we will honor the reservations of those who respond first.

When: November 2, 2017 from 8:00 AM – 12:00 PM EDT
Where: Hartford Marriott Downtown,  200 Columbus Boulevard,  Hartford, CT

Download: event brochure

 

 

Topics:

Culture Shock: Preserving and Protecting Your Company’s Culture and Reputation in the Digital Age
– Presenters: Daniel A. Schwartz and Jarad M. Lucan 

In today’s social-media-obsessed digital age, your company and its culture may be put on display for the world to see in mere moments. Whether it’s a Google engineer’s memo claiming gender differences, the sexual harassment scandals at Fox News or the Weinstein Companies, social media rants by employees, or employees participating in hate riots, it has never been more incumbent upon employers to address these issues immediately and appropriately. This session will review state and federal laws and provide employers with steps they can take to create and foster positive company culture and mitigate legal risks.

Evaluating your Evaluations: Conducting Fair Evaluations and Avoiding Implicit Bias
– Presenters: Gabriel J. Jiran and Peter J. Murphy

Employee evaluations are a vital tool for assessing the effectiveness of your workforce, and sometimes do not get the attention they deserve. Presenters will discuss best practices for conducting impartial evaluations, and provide guidance for avoiding implicit bias.

Immigration Innuendos: Keeping Up with an Ever-Changing Landscape
– Presenters: Brenda A. Eckert and Ashley E. Mendoza

2017 has been a busy year for immigration law. What do changes to DACA, travel bans, Visa regulations, form I-9, increased ICE enforcement, etc. mean for employers and their workforces? This session will provide an overview of recent executive orders and highlight what employers need to know to navigate the recent changes.

Tightening the Belt: Dealing with Budgetary Concerns and Reductions in Workforce
Presenters: Lisa Banatoski Mehta and Christopher E. Engler

Budget or no budget, businesses and organizations throughout the state may be faced with the need to reduce their workforces and otherwise confront financial pressures. Presenters will review federal and state employment laws, sound employment policies, and best practices in dealing with uncertain economic times.

We hope you can join us for this important discussion for private and public employers.

Continuing Legal Education (CLE):

This CLE program has been approved in accordance with the requirements of the New York CLE Board for a maximum of 3.5 credit hours in Professional Practice and is appropriate for both transitional and nontransitional attorneys.

Neither the Connecticut Judicial Branch nor the Commission on Minimum Continuing Legal Education approves or accredits CLE providers or activities. It is the opinion of this provider that this activity qualifies for up to 3.0 hours toward your annual CLE requirement in Connecticut, including 0 hours of ethics/professionalism.

Statutory Changes to Athletic Trainer Laws: What’s New?

Earlier this summer, the Connecticut General Assembly passed Public Act No. 17-195, An Act Concerning Athletic Trainers (the “Act”), which amended the statute governing the professional requirements surrounding athletic trainers. Effective October 1, 2017, Section 1 of the Act amended Connecticut General Statutes § 20-65f, which contains the relevant definitions applicable to athletic trainers. In sum, these revisions clarify the scope of practice for athletic trainers and enumerate various requirements for standing orders and insurance coverage.

Under existing law, athletic trainers apply care “with the consent and under the direction of a health care provider.” The new Act now defines the phrase “with the consent and under the direction of a health care provider” to mean athletic training provided “under a written prescription issued by a health care provider” specifying the plan of care or treatment or “under a standing order issued by a health care provider.” Importantly, the new Act also substantially revised the definition of “standing orders” to require, among other things, that standing orders must:

  • be annually reviewed and renewed by the health care provider and athletic trainer;
  • require ongoing communication between the provider and trainer;
  • include a plan for emergency situations, appropriate treatments for specific illnesses or injuries, instructions for concussion treatment and management, and a list of conditions necessitating immediate referral to a health care provider; and
  • include a list of conditions that are beyond the scope of practice, education, or training of the athletic trainer.

Athletic trainers not practicing under standing orders may only perform initial evaluations and immediate injury management and emergency care for those suffering an acute athletic injury or illness, and must make a referral of such treated individual to a licensed health care provider.

Additionally, Section 4 of the Act amended Connecticut General Statutes § 20-65j, now requiring that, commencing with the license renewal registration period on or after October 1, 2017, athletic trainers seeking renewal carry professional liability insurance or other indemnity for professional malpractice of at least $500,000 per person per occurrence, and $1.5 million aggregate, unless that insurance or indemnity is provided by the employer.

Schools and districts should review these revisions and their procedures for athletic trainers to ensure compliance with these new statutory requirements.

Lisa Banatoski Mehta and Peter Maher to Co-Present Sessions at CABE Legal Issues 2017

On October 17, 2017, Lisa Banatoski Mehta and Peter J. Maher will co-present sessions at the CABE Legal Issues 2017 Workshop.

Lisa’s session, “Hot Legal, Labor and Legislative Topics: A Review of Case Law, Agency Decisions, and Legislative Action Impacting Schools” will focus on an examination of recent case law and administrative agency decisions and actions. Presenters will discuss decisions and awards issued by Connecticut courts and State Agencies, including, SDE, FOIC, the State Board of Labor Relations and the State Board of Mediation and Arbitration. And, saving the “best” for last, stay tuned for the inside scoop on action or in-action at the Connecticut General Assembly.

Peter’s session, “Expulsions by the Numbers, Draft Guidelines for the Education of Expelled Students” will review 2016 legislation enacted by the Connecticut General Assembly requiring SDE to adopt guidelines drastically increasing the amount of instruction to be delivered to expelled students. This session will also include a detailed analysis of the proposed guidelines as well as a look at cost and other barriers to implementation, what alternative education programs are available, and what school districts can do to support ongoing efforts for substantial revisions to these burdensome standards.

When: October 17, 2017 from 8:30 am – 12:00 pm
Where:  Inn at Middletown, Middletown, CT

For more information about the workshop and to register, click here. To register online, click here.

CAS Legal Mailbag Question of the Week – 10/11/2017

Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

I hope that you can help me out of a jam. Last week, during an otherwise uneventful day, a crowd gathered at the middle school where I am principal. They had signs and were banging on pots. Normally, such carrying on would annoy me, but the vibe was festive and I went out to see what was going on. As it turns out, the crowd was largely parents and teachers who were demonstrating against the governor’s proposed cuts in education funding for the school district.

Happy to support the cause, I joined in and even borrowed a pot to bang on. I had great fun, and it reminded me of being in college. After about an hour, the demonstration came to an end, and I went back inside to another day at work.

I didn’t think another thing of the demonstration until the local paper came out the next morning with a big picture of me (with my name and title in the caption) on the front page under the headline “Noisy Demonstration Disrupts School.” I figured that this was not good, and the phone rang shortly thereafter to confirm my premonition. My superintendent was fit to be tied that I had joined in the demonstration, albeit for a good cause. The superintendent asked rhetorically whether I had asked to see their permit for the demonstration (there was none), and he scheduled a meeting in his office tomorrow “to review my actions.” Do I have some sort of free speech claim to get out of this mess?

Thank you,
Running Scared

Dear Scared:

Your best bet here is to go hands-up and admit a lapse in judgment. Pushing back with a free speech claim will only antagonize the superintendent. There are several concerns here.

First and foremost, school property is a place of business, and the superintendent and the board of education have the authority to decide how property dedicated to use for school purposes will be used. When you saw a demonstration on school property, you should have alerted the superintendent to determine whether that use of school property was authorized.

Second, school boards and superintendents must be careful about what uses they permit for school property. To be sure, you were pleased to bang on a pot to protest education-funding cuts. But school districts cannot pick and choose based on the content of speech. Once the district opens up school property to demonstrations for one cause, it will have opened up a forum for speech, and it cannot then discriminate against other groups on the basis of their speech. Rather, the school district would be obligated to permit demonstrations by other groups, even those with unwelcome messages.

Third, you did not have any “free speech” rights to join in. On your own time, you have the right to demonstrate and otherwise speak out on matters of public concern (as long as your speech does not disrupt the operation of the school district). However, in this case you were at work, which decidedly is not a forum for free speech.

One may hope that by reciting this multi-part mea culpa at the upcoming meeting with the superintendent, you will be forgiven. Good luck to you.

In Aftermath of Hurricane Maria, Connecticut School Districts Reminded of Obligations to Displaced Puerto Rican Students

On September 28, 2017, Connecticut Governor Dannel P. Malloy and Commissioner of Education Dr. Dianna R. Wentzell issued a joint memorandum  to Connecticut superintendents of public schools outlining local educational agency (“LEA”) obligations to homeless youth displaced by natural disasters. It is anticipated that many school-age students will seek refuge in Connecticut in light of the devastation rendered in Puerto Rico by Hurricane Maria. Public school districts are uniquely poised to supply a degree of normalcy to such students through educational opportunities and referrals to other services.

Under Subtitle VII-B of the federal McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11431-11435, (the “Act”), children and youth in homeless situations are afforded certain educational protections. Under the Act, “homeless children and youth” include individuals who “lack a fixed, regular, and adequate nighttime residence” and often includes those students displaced by disasters, including those students staying in accommodations set up by relief and community agencies. Such students displaced by disasters generally meet the Act’s definition and, as noted in the joint memorandum, such students will also qualify for free school meals, as well as health and other related services.

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Webinar Recap: Mandated Reporting in Connecticut – Understanding Legal Obligations and Best Practice

In case you missed it, Shipman & Goodwin attorneys Julie C. Fay and Laura A. Fisher recently presented a complimentary webinar on the topic of mandated reporting in Connecticut for independent and public schools.  The webinar reviewed the obligations under Connecticut law for school employees who are considered mandated reporters, including what triggers the obligation to report, how to make reports when required and recent changes addressing students over the age of 18.

This webinar also included discussion of frequently asked questions such as how to coordinate investigations with the Department of Children and Families and law enforcement, and when student-student sexual activity may trigger an obligation to report. The complimentary webinar replay is now available to watch on demand for up to one year.

Click Here to Watch Webinar Replay.  *Please follow the prompts to register/log-in when launching the replay.

CAS Legal Mailbag Question of the Week – 10/3/2017

Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

It is bad enough that I can’t watch my beloved NFL games without being confronted with political protests. Now, as the assistant principal in a high school, I am getting panicky emails from teachers and coaches asking me what to do if the students in their charge “take a knee” during the recitation of the Pledge of Allegiance or the playing of the National Anthem. I know what I would like to say, but I don’t want to get sued for giving bad advice.

My sense of it is that teachers should let students take a knee during the Pledge because of some case I read somewhere. But I think that team sports stands on a different footing and that coaches can require that students all stand respectfully, hand over heart, while the National Anthem is played. Did I get that right?

Thank you,
Playing the Lawyer

Dear Playing:

Legal Mailbag agrees with your advice regarding students in school, but whether you got it right regarding the players will depend on the facts. The coach would have to show that the players’ actions caused a material disruption or substantial interference with the educational process, and I have my doubts whether that would be possible.

Two cases decided long ago frame the analysis here. In 1943, at the height of the Second World War, the United States Supreme Court decided whether officials in West Virginia had the right expel a student for refusing (on religious grounds) to recite the Pledge of Allegiance. Notwithstanding the fact that the country was at war and patriotism was high, in a decision that reflects the best values of this country, the Court held that requiring a student to pledge allegiance violates the United States Constitution, stating:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Twenty-six years later, the Court decided that school officials in Iowa violated the free speech rights of a student, Mary Beth Tinker, by suspending her (and her brother and a friend) for wearing black armbands to school to protest the war in Viet Nam. In so doing, the Court stated that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and it announced the rule that guides us today. Students have a right of free expression under the First Amendment unless school officials reasonably forecast substantial disruption or material interference with the educational process or invasion of the rights of others. Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).

Applying these principles to the first situation you confront – students engaging in symbolic speech by “taking a knee” during the Pledge – it is clear that school officials may not regulate such speech unless they reasonably forecast substantial disruption to or material interference with the educational process. In these days when students and others are quite willing to share their thoughts and views, it is hard to imagine that a student’s taking a knee during the Pledge would cause such disruption or interference.

The analysis is similar with students on sports teams is similar, but the factual context is different. There, the students are participating as part of a team, and uniformity and “teamwork” are expected. For example, student athletes cannot express themselves by wearing other than the standard-issue jerseys. Accordingly, in considering a free speech claim in the context of school sports, one court held that school officials did not violate the free speech rights of students by dismissing them from the team after they circulated a petition to get their coach fired. Lowery v. Euverhard, 497 F.3d 584 (6th Cir. 2007). Significantly, the court applied the Tinker test, but it found that circulating the petition under the special circumstances of team sports could be viewed as substantially disruptive, given the need for team unity and the polarizing effect that such a petition could have.

Applying these principles to the question you pose, without more I would still advise coaches to be tolerant of such student expression. To be sure, there is a greater likelihood in the context of an athletic team for such expression to be a substantial disruption or material interference of the team’s functioning. However, the Tinker standard requires a “reasonable forecast” of such disruption. Absent some special circumstances (and sitting in the comfort of my chair at home), I cannot predict that such symbolic speech by one or more student athletes would be such a disruption that would justify restricting such student speech.

Symposium on Student Safety

Anne Littlefield will participate in the Expert Forum and Audience Q&A session (11:45 AM – 12:30 PM) of the Symposium on Student Safety on October 3, 2017.

The Symposium on Student Safety is free for school and district administrators, cabinet members and other educators responsible for student online safety. Attendees will engage in strategic and tactical discussions, learn more about keeping students safe and enjoy plenty of networking opportunities.

Who should attend:

  • Superintendents
  • Assistant/Deputy Superintendents
  • Chief Operations Officers
  • Chief Communications Officers
  • Chief Technology Officers/Technology Directors
  • Safety and Security Directors
  • School Police Chiefs

When: October 3, 2017
9:00 AM – 1:30 PM EDT

Where: University of Saint Joseph
Mercy Hall
Crystal Room
1678 Asylum Avenue
West Hartford, CT

 

 

SEE YOU IN COURT! – October 2017

It didn’t take long. School started in Nutmeg just a month ago, and already Ms. Superintendent was calling the members of the Board of Education to schedule an expulsion hearing. “This is a good one,” she told veteran Board member Bob Bombast. “Joe Blow hacked into the computer system at Nutmeg Memorial High School and gave himself and a number of friends better grades. Can I count on you?”

“I understand,” Bob Bombast replied. “Don’t worry. I have this.”

Ms. Superintendent promptly sent out the standard expulsion notification letter, and the next day she received a call from Bill Alot, a local lawyer, who told her that he is representing Joe Blow. “Of course, I will not be ready to proceed next week per your letter. It is clear that my client is the victim of mistaken identity, and it will take me some weeks to ferret out the truth. I will be back to you when I am ready.”

Ms. Superintendent asked Bill if the Blow family agrees to keep Joe out of school pending the scheduling of the hearing. “Of course not,” Bill responded. “This great young man shouldn’t suffer any disruption to his education.” Ms. Superintendent considered Bill’s position for five or six seconds, and then she told Bill that she was denying Bill’s request and that the hearing will go forward as scheduled.

Attorney Alot and the entire Blow family were in attendance at the scheduled hearing. Before Ms. Superintendent could begin her presentation of the evidence against Joe, however, Bill Alot asked to be heard, and Mr. Chairperson agreed.

“This entire proceeding is tainted with a failure to comply with legal requirements,” Bob intoned. “First, the family received a notification letter that is wholly inadequate and illegal. Then, I make a simple request for postponement, which Ms. Superintendent summarily denied. I ask you to dismiss this case with prejudice.”

Veteran Board member Bob Bombast spoke next. “Thank you, Attorney Alot, for that speech. But we cannot have wrong-doers like Joe Blow in school with the good children who want to learn. I move that we go ahead with the hearing.”

After a brief huddle with Ms. Superintendent, Mr. Board Chairperson announced his ruling that the hearing would go forward. He turned to Ms. Superintendent and ask her to present the case. Ms. Superintendent explained to the Board that the Assistant Principal at the High School had heard rumors that students’ grades had been changed and that Joe Blow was responsible. He called Joe right down to the office, and Joe admitted (with some pride) that he had changed the grades. “Enough said,” Ms. Superintendent stated, and she concluded her presentation.

Attorney Alot then renewed his accusations against the Administration, now claiming that the Assistant Principal deprived Joe of his constitutional right against self-incrimination by not reading him his Miranda rights. However, the Board wasn’t buying it, and it expelled Joe.

Attorney Alot vowed to appeal. Should the Board have any concerns?

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