Federal and State Role in Education

The United States Departments of Education and Health and Human Services (the “Departments”) recently issued a joint policy letter emphasizing the importance of improving school-based
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In recent years, there have been increasing concerns involving discrimination faced by the transgender community.  Not surprisingly, these concerns have centered on the challenges faced by gender non-conforming students and whether the needs of such students are being met by school officials.  Though the law on gender identity is still in its relative infancy, schools are now mandated to create and maintain a safe school environment free from discrimination on the basis of gender identity and expression under Connecticut law.  Though the relevant federal civil rights laws do not expressly extend to gender identity or expression, it is increasingly clear that the federal government has taken the position that there is protection for gender non-conforming students under federal law.  For example, last month, the U.S Departments of Education and Justice (the “Government”) jointly filed a “Statement of Interest” challenging a school district’s legal contention that a transgender student may only establish a claim of sex discrimination based on evidence of sex stereotyping.

In his complaint, the plaintiff, a student presenting as male, alleged that school officials refused to allow him to use male restrooms, and instead, required that he use a female staff or a unisex restroom, which resulted in peer harassment. The plaintiff also alleged that school officials revealed his status to members of the school community by repeatedly using his birth name and female pronouns when referring to him. Moreover, the plaintiff alleged that after his mother expressed concerns to school officials, an administrator told his mother she was “being overly sensitive.”

In defense, the school district filed a Motion to Dismiss arguing that the evidence proffered by the plaintiff was insufficient to establish a claim of sex discrimination.  In challenging the school district’s argument, the Government argued that Title IX provides protection for transgender students.  More specifically, the Government asserted that “[u]nder Title IX and the Equal Protection Clause, discrimination based on a person’s non-conformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes [sic] discrimination based on sex.”
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SafetyFirstImageThe Division of Emergency Management and Homeland Security (DEMHS) within the Connecticut Department of Emergency Services and Public Protection (DESPP) recently released revised school security
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The recent outbreak of measles that has been traced back to Disneyland has made the issue of childhood vaccinations, and the various state laws that require vaccinations, a hot topic. Despite the recent furor over Ebola and the fear of it spreading, measles is much more contagious than Ebola and, as a result, a better test case concerning issues of public health and necessity of vaccination. According to the Center for Disease Control (“CDC”), measles is so contagious that if one person has it, 90 percent of the people close to that person who are not immune will also become infected. Not only is measles highly contagious, but the vaccination is both highly effective and cannot be administered to children under the age of twelve months, highlighting the importance of “herd” immunity.

Epidemiologists place a 92 percent community vaccination rate as the threshold to prevent a rapid spread of measles. Yet, a CDC 2013 survey of the states found that 17 states had vaccination rates below 90 percent for 18-35 month old children. Connecticut, with a vaccination rate of 91.4, is below the recommended vaccination rate and well behind its neighboring states of Rhode Island, Massachusetts, New York and New Jersey, which all had vaccination rates over 95 percent.

One of the reasons for these less than desired vaccination rates, despite the fact that every state has laws that require childhood vaccinations, is that most states provide for exemptions from immunization. The most common exemptions are medical, religious, and personal belief.  States, including Connecticut, also typically require students to be vaccinated for specific diseases before they can attend public school.

Not surprisingly, the laws that require a student to be immunized before attending public school have been subject to legal challenges. A recent decision of the Second Circuit Court of Appeals addressed and rejected such a challenge. In Philips v. City of New York, the Court of Appeals addressed a constitutional challenge to New York State’s requirement that all children be vaccinated in order to attend public school.
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The Ninth Circuit US Court of Appeals, in Ollier v. Sweetwater Union High School District, recently affirmed a district court’s judgment granting declaratory and injunctive relief to the plaintiffs in a class action suit brought pursuant to Title IX, alleging inequity in the providing of equal athletic opportunities to female students. In the process of granting relief to the plaintiffs and rejecting the defendants’ arguments, the Ninth Circuit Court presents a useful primer on Title IX analysis concerning equal opportunities for female athletes.

In Ollier the plaintiff students alleged that the school district defendants intentionally discriminated against female students at Castle Park High School by unlawfully failing to provide female student athletes equal treatment and benefits as compared to male athletes. Specifically, the plaintiffs alleged inequitable facilities, equipment and supplies, transportation vehicles, coaches, scheduling, publicity, funding and athletic participation opportunities. In addition, the plaintiffs also accused the defendant school district of retaliation based on the firing of the softball coach following the raising of concerns over athletic equality.

At the trial court level, the defendants were found to have violated Title IX by failing to provide equal treatment and benefits in nine different areas and in retaliating against the plaintiffs by firing the softball coach after a parent had complained to school administrators about inequalities for girls in the school’s athletic programs.

In analyzing the district court’s granting of summary judgment, the Ninth Circuit utilized a three-part test to determine whether an institution is complying with the “effective accommodation” requirement of Title IX: (1) whether participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; (2)  where the members of one sex are underrepresented, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the athletes of that sex; and (3) where an institution cannot show a continuing practice of program expansion, whether it can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
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On October 21, 2014, United States Assistant Secretary Catherine Lhamon issued another Dear Colleague Letter on the topic of bullying of students with disabilities.  This
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