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In light of the Trump administration’s rescission of 2016 federal guidance from the U.S. Departments of Justice and Education concerning school district obligations to transgender and gender nonconforming students, on February 23, 2017, Governor Dannel P. Malloy, together with Commissioner of Education Dianna R. Wentzell, issued clarifying guidance to Connecticut Superintendents of Schools reaffirming the protections afforded to such individuals under relevant Connecticut state law.  Along with this joint guidance, Governor Malloy issued Executive Order 56, directing the Connecticut State Department of Education (“SDE”) and the Connecticut Commission on Human Rights and Opportunities (“CHRO”) to consult and develop guidance for school districts concerning the best practices and legal requirements for protecting the rights of transgender students.

Following Executive Order 56, SDE recently developed two guidance documents summarizing civil rights protections and best practices for supporting gender nonconforming students.  The new guidance includes both a document entitled “Guidance on Civil Rights Protections and Supports for Transgender Students”, which provides an overview of legal requirements and best practices, and a Frequently Asked Questions document, which addresses discrete issues related to such topics as privacy, student records, and access to sex-segregated areas, such as bathrooms and locker rooms.  Further, the guidance urges districts to develop and implement professional development programming for staff based on the extensive information in both documents.

As noted, the guidance touches on several important and practical topics, including the construction and applicability of several laws, on-the-ground practical solutions and considerations, and administrative concerns.  We have summarized some of the main points below, and encourage further review of the guidance in its entirety.
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With summer right around the corner, it is time for many parents to start signing up their children for summer camp.  For most, enrolling children in camp usually is a smooth and uneventful process requiring the completion of an application form.  For parents of children with disabilities, however, admission into summer camp can sometimes be a difficult and complicated process if a child requires accommodations in order to attend and participate in a camp program.

As camps and other summer programs begin preparing for the onset of summer, now is a good time to be reminded of obligations under the Americans with Disabilities Act (“ADA”) which require entities, such as summer camps, to provide accommodations to children with disabilities seeking to enroll and participate in their programs.  Summer camps, like many other public and private entities, are subject to the ADA’s requirements.  Compliance with the ADA is enforced by the U.S. Department of Justice (the “DOJ”).  The hallmark requirement of the ADA is the obligation to provide “reasonable accommodations” to covered individuals.  A reasonable accommodation is one that does not fundamentally alter the nature of the program or services provided by the camp or which does not otherwise cause an undue burden on the program.  What constitutes an “undue burden” depends on a number of factors; however, it is critical that camps engage in a thoughtful and individualized decision-making process to determine whether a particular child’s needs may be accommodated before summarily dismissing certain applicants from consideration for enrollment.

Summer camps are not obligated to enroll children who are not otherwise qualified to participate in a camp program, even with a reasonable accommodation.  For instance, a child with a disability that prevents the child from playing basketball need not be admitted to a basketball camp.  Still, summer camps must be careful not to impose nonessential eligibility criteria that screens out or tends to screen out children with disabilities and must also ensure that the programs meet all architectural standards for physical accessibility.

A recent article published in the Hartford Courant highlights the difficulties faced by some parents of children with disabilities when seeking to find summer camps for their children, and recent enforcement efforts to ensure campus are ADA compliant.  By way of example, the article tells the story of a child with diabetes who was told by a camp that it could not accommodate the child as it did not have a nurse on staff and was unwilling to hire one.  In that case, the camp was faulted for failing to consider if there were alternatives to hiring a nurse that might have permitted the child to attend, and the camp was required to provide training for staff members prior to the start of camp on how to follow the child’s  treatment plan so that he could participate in the program.
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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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