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Maree Sneed  		July 12, 2017 Maree Sneed  		July 12, 2017

Maree Sneed July 12, 2017 - PowerPoint Presentation

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Maree Sneed July 12, 2017 - PPT Presentation

Maree Sneed July 12 2017 Supreme Court and Federal Regulation AASA Advocacy Conference Hogan Lovells 2 The US Supreme Court Newest Addition Justice Neil Gorsuch Cases before the US Supreme Court this term ID: 769278

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Maree Sneed July 12, 2017 Supreme Court and Federal Regulation AASA Advocacy Conference

Hogan Lovells| 2 The U.S. Supreme Court Newest Addition: Justice Neil GorsuchCases before the U.S. Supreme Court this termIDEA and FAPEFry v. Napoleon Community SchoolsS.D. v. Haddon Heights Board of EducationEndrew F. v. Douglas County School DistrictTransgender Student RightsGloucester County School Board v. G.G.Whitaker v. Kenosha Unified School District (7th Cir) Public funds for private or religious schools Trinity Lutheran Church v. ComerED regulations under the Trump Administration Wrap up/QuestionsAgenda

The U.S. Supreme Court

Hogan Lovells| 4 The nine Justices serve lifetime appointments following nomination by the President and confirmation by the SenateThe Court was created in accordance with Article III of the U.S. ConstitutionBut Congress, not the Constitution, sets the number of JusticesThe current nine Justices are:Chief Justice John Roberts, Associate Justice Anthony Kennedy, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch The Court decides to hear cases when at least four of the nine justices vote to grant the Petition for Certiorari (this happens less than 90 times out of out of 7,000+ writs)The Court hears oral arguments on cases from October through April, where each side’s attorney is allocated a half hour for oral argumentsThe Supreme Court Generally

Hogan Lovells| 5 Served on the 10th Circuit since 2006 (nominated by George W. Bush)Nominated to the Supreme Court on February 1, 2017; sworn in on April 10, 2017 (filling the seat left vacant after the death of Justice Antonin Scalia)Background (49 years old):Educated at Columbia University (B.A.), Harvard Law School (J.D.), and Oxford University (Ph.D.)Clerked for Judge David Sentelle on U.S. Court of Appeals for the DC Circuit, Justices Byron White and Anthony Kennedy of the U.S. Supreme CourtHas worked both in private practice and at government agencies (DOJ) as an attorney before appointment to the benchMost recent Supreme Court addition: Justice Neil Gorsuch

Hogan Lovells| 6 As potentially relevant to Gloucester v. G.G. (even though the Court is no longer hearing it): Questions “Chevron deference”—judges deferring to an agency’s interpretation of a law unless that interpretation is “unreasonable.”Joined a 2015 opinion rejecting arguments made by a transgender woman incarcerated in OK: “To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims . . .”On the rights of students with disabilities: Thompson R2-J School District v. Luke P., (10th Cir) Wrote opinion finding that the school district did provide FAPE for an autistic student, even though the student couldn’t apply what he was learning at school to other environments. Because Luke was making “some progress” toward his educational goals, the school district had met its obligations. The standard applied in this case was struck down by the Supreme Court’s decision in Endrew F. A.F. v. Espanola Public Schools Wrote the majority opinion (2-1) ruling that a student who had come to a mediated settlement with the school district under IDEA couldn’t then bring an identical claim under the ADA or Section 504. Justice Gorsuch on transgender rights, students with disabilities

Hogan Lovells| 7 Dissented in A.M. vs. Holmes (2016) Court ruled it was appropriate for an SRO to arrest a student who burped during gym class: “[A]rresting a now compliant class crown for burping was going a step too far.”Joined a decision in Hawker v. Sandy City Corp. (2014) Court held a city police officer’s “twist-lock” restraint on arms of a 9-year-old student suspected of stealing an iPad did not constitute excessive force. The officer used the twist-lock after the student had grabbed the officer’s arm: “It is regrettable that a police officer feels the need to resort to physical force…Equally regrettable is the disrespectful, obdurate, and combative behavior of that 9-year-old child.” Joined a unanimous decision in Muskrat v. Deer Creek Public Schools (2013)Court held a school district’s use of a “timeout room” to briefly restrain an elementary school student with developmental disabilities did not “shock the conscience” and thus did not violate the student’s constitutional rights. Justice Gorsuch on school discipline

Hogan Lovells| 8 On school finance: Joined the decision in Petrella v. Brownback(2012), finding that a group of Kansas parents could proceed with a lawsuit seeking to declare a federal constitutional right to spend more on education than the state’s school-finance plan permitted. The 10th Circuit held that the parents had standing to sue because their alleged injury (unequal treatment) could be redressed by a favorable decision. (The lawsuit was later rejected on the merits by a separate 10th Circuit panel that did not include Gorsuch.)On school employee speech: Wrote the opinion in Casey v. West Las Vegas ISD (2007), upholding the dismissal of most First Amendment free speech retaliation claims brought by a district superintendent:The superintendent had been demoted and her contract not renewed after she raised issues about improper spending in the district’s Head Start program, alleging that the board was violating the state’s open meetings act.The Judge Gorsuch wrote that most of the retaliation claims were barred under a 2006 decision that held when public employees speak pursuant to their jobs, they are not immune from discipline, as they may be when speaking as citizens. Justice Gorsuch on school finance, employee speech

Cases before the U.S. Supreme Court this term

The Individuals with Disabilities Education Act (IDEA ) and Free Appropriate Public Education (FAPE)

Fry v. Napoleon Community Schools

Hogan Lovells| 12 E.F. has cerebral palsyHer parents asked the school to allow Wonder, her goldendoodle, to accompany her to school and assist her (e.g., picking up things she dropped, assisting her with her coat, helping her in the bathroom)The school initially refused, suggesting E.F.’s 1-on-1 human aide could do everything that Wonder could doAfter a brief trial period, the school barred Wonder from schoolFry v. Napoleon Community Schools

Hogan Lovells| 13 The Frys filed a lawsuit in federal district court in MichiganSuit alleged the school district’s refusal to allow Wonder to accompany E.F. to school violated both the ADA and Section 504It also asked the court to award damages for the “social and emotional harms” the school district’s actions caused E.F.Fry v. Napoleon Community Schools

Hogan Lovells| 14 District court dismissed the caseCourt referred to a federal law that requires a family “seeking relief that is also available under” IDEA to exhaust all possible administrative remedies under the IDEA before filing a lawsuit for violation of other lawsU.S. Court of Appeals for the 6th Circuit affirmed district court decisionFry v. Napoleon Community Schools

Hogan Lovells| 15 Handicapped Children’s Protection Act of 1986 (HCPA) requires exhaustion of administrative remedies under the Individuals with Disabilities Education Act (IDEA) for non-IDEA actions “seeking relief that is also available under” the IDEA Question presented at Supreme Court: Whether HCPA requires exhaustion of administrative remedies in a lawsuit brought under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (Section 504) seeking monetary damages – a remedy that is not available under the IDEAFry v. Napoleon Community Schools

Hogan Lovells| 16 Oral argument held October 31, 2016Opinion was issued February 22, 2017Decision:Vacated and remanded, 8-0Unanimous opinion written by Justice KaganConcurring opinion by Justice Alito (joined by Justice Thomas)Fry v. Napoleon Community Schools

Hogan Lovells| 17 Ripped from the headlines

Hogan Lovells| 18 Holding of the Supreme Court:Exhaustion of administrative procedures established by IDEA is unnecessary when the “gravamen” of the plaintiff’s suit is something other than the denial of FAPECase remanded to 6th Circuit for analysis of whether gravamen of E.F.’s complaint is denial of FAPE (or something else)Fry v. Napoleon Community Schools

Hogan Lovells| 19 Court’s reasoning:HCPA requires a plaintiff to begin with IDEA’s administrative proceedings if she is seeking “relief” that is “available” under the IDEAUnder IDEA, only “relief” that is “available” is FAPEPlaintiff must first use IDEA’s administrative proceedings only if she contends she has been denied FAPEIDEA hearing officer cannot provide relief other than FAPEFry v. Napoleon Community Schools

Hogan Lovells| 20 Supreme Court’s proposed test to decide when plaintiff is seeking relief for denial of FAPE: Look to the “gravamen” or “essentials” of the complaintDon’t make decision based on any “magic words” in the complaintFry v. Napoleon Community Schools

Hogan Lovells| 21 Two questions courts should ask to determine if a complaint is truly about FAPE: Could plaintiff have brought essentially same claim if alleged conduct had occurred at a public facility that was not a school—like a public theatre or library? Could an adult at school—like an employee or visitor—have raised same grievance?If “yes”, then complaint that does not allege denial of FAPE is unlikely to be “truly” about FAPEFry v. Napoleon Community Schools

Hogan Lovells| 22 Applying Supreme Court’s test to Wonder:Possibly, the Frys may not have been required to go through IDEA’s administrative proceedingsLawsuit did not argue that E.F. did not receive FAPEFamily could have filed essentially same complaint against public library, e.g.; adult visiting school could have complained about limits on service dogSupreme Court concluded it didn’t have enough information to reach a decision, sent case back to lower courtFry v. Napoleon Community Schools

Recent Application of Fry in S.D. v. Haddon Heights Board of Education

Hogan Lovells| 24 S.D. suffers from multiple medical problems including chronic sinusitis, allergies and asthma causing him to miss school frequentlyS.D.’s parents and the school met on multiple occasions to create and amend a student accommodation plan S.D.’s parents allege the plan failed to provide a mechanism for homebound educationIn 2013-14 the school enacted an attendance policy in which students with more than 33 absences in a school year—regardless of whether “excused, approved, [or] unexcused”—must be retainedS.D. v. Haddon Heights Board of Education

Hogan Lovells| 25 S.D.’s parents alleged the school’s attendance policy deprived S.D. of an equivalent education in violation of the Americans with Disabilities Act, Rehabilitation Act (among other claims)The district court dismissed the claimsHeld that claims of retaliation for enforcement of rights under IDEA (although brought pursuant to non-IDEA statutes) are subject to the IDEA exhaustion requirementS.D. Appealed to the 3rd CircuitS.D. v. Haddon Heights Board of Education

Hogan Lovells| 26 Question presented on appeal at 3rd Circuit:Whether, in the non-IDEA action, the nature of Plaintiff’s claims nevertheless required compliance with the IDEA’s administrative exhaustion process3rd Circuit affirmed district courtCourt held that because S.D.'s injuries were educational in nature and implicated services under the purview of the IDEA, the claims must be exhausted under the IDEAS.D. v. Haddon Heights Board of Education

Hogan Lovells| 27 S.D. appealed to the Supreme CourtThe Supreme Court granted certiorari, but then remanded to the 3rd Circuit on May 15thIn a two sentence opinion, the Supreme Court held that the 3rd Circuit must reconsider the case in light of Fry (exhaustion of the IDEA's administrative remedies is unnecessary where gravamen of plaintiff's lawsuit is something other than the denial of FAPE) S.D. v. Haddon Heights Board of Education

Hogan Lovells| 28 1) Plaintiffs must exhaust administrative remedies before filing a lawsuit under the Individuals with Disabilities Education Act (IDEA).2) The only relief available to plaintiffs under IDEA is Free Appropriate Public Education (FAPE). 3) The Supreme Court ruled that E.F. could not bring her service dog to school. Pop Quiz on Fry and Haddon Heights! True or False?

Hogan Lovells| 29 To determine if an individual must exhaust administrative procedures before pursuing a suit, ask this question: If the complaint or suit concerns denial of FAPE or disability-based discrimination, could the plaintiff bring the same claim if the conduct had occurred at, say, a public library or theater? If yes, complaint does not expressly allege denial of FAPE. If no, the FAPE requirements of exhaustion apply. The result of Fry could mean more lawsuits, but not necessarily. If the complaint can be solved under IDEA’s administrative procedures, that is usually a quicker resolution. What does Fry and Haddon Heights Board of Education mean for schools?

Endrew F. v. Douglas County School District

Hogan Lovells| 31 BackgroundIDEA gives federal funds to states that offer a “free and appropriate public education” (FAPE) to disabled studentsStudent’s IEP must set forth plan that is tailored to each child’s unique needsIn 1982, Supreme Court ruled in Board of Education v. Rowley that IEP must be “reasonably calculated to enable the child to receive educational benefits”Endrew F. v. Douglas County School District

Hogan Lovells| 32 Endrew (Drew), a student with autism, was enrolled in Douglas County School District from preschool – 4th grade, where each year he had an IEPIn 5th grade, Drew’s parents disagreed with school officials about IEP proposed for that year. His parents subsequently enrolled Drew in private school.Drew’s parents filed a complaint with the state’s department of education, claiming he had been denied FAPE and seeking reimbursement for private school tuition.Hearing officer ruled for district, finding that Drew had made “some academic progress” while in public school.Endrew F. v. Douglas County School District

Hogan Lovells| 33 Drew and his parents filed lawsuit in federal district court; court agreed with the districtU.S. Court of Appeals for the 10th Circuit upheld that ruling10th Circuit held that the school district needed to try to provide Drew with educational benefit that was “merely more than de minimis”Under that test, Drew’s IEP was “substantially adequate”Drew and his parents asked U.S. Supreme Court to take the caseEndrew F. v. Douglas County School District

Hogan Lovells| 34 Question presented to the Supreme Court: What is level of educational benefit that school districts must confer on children with disabilities to provide them with FAPE as guaranteed by the IDEA?Endrew F. v. Douglas County School District

Hogan Lovells| 35 Drew and his parents argued: IDEA does not require schools to “maximize the potential of children with disabilities,” but it is not enough for schools to provide a “merely more than de minimis” benefit.Schools need to provide children with disabilities with essentially the same opportunities available to students generally.Under IDEA, Congress intended to provide students with disabilities with not just access to education, but with enough substantive educational benefit to make such access meaningful.Endrew F. v. Douglas County School District

Hogan Lovells| 36 Federal government filed a brief supporting Drew and his parents:In Rowley, Supreme Court indicated that FAPE requires that students have “access” to education that is “meaningful.”“Meaningful access” is “most sensibly understood” to require that students have “an opportunity to make significant educational progress” – a higher standard than “more than de minimis” benefit.Endrew F. v. Douglas County School District

Hogan Lovells| 37 District argued:In Rowley, Supreme Court indicated that IDEA does not “prescribe the level of education to be accorded handicapped children.”A child with a disability receives an “appropriate education” as long as that education is “personalized” and “sufficient to confer some educational benefit.”Other provisions of IDEA “ensure children will and do receive a high-quality education”—no need to impose a more specific standard.District argued that a more specific standard would have undesirable consequences, such as requiring courts to become more involved in education policy disputes and, a more specific standard would change the “rules” of the game so that states couldn’t anticipate the standard. Endrew F. v. Douglas County School District

Hogan Lovells| 38 AASA, together with other educational organizations, filed an amici curiae brief in support of district arguing that:Only Congress can redefine FAPE, and Congress has embraced the “some benefit” standard in Rowley.IEP process and other federal statutes already ensure that districts aim high, and asking judges to second-guess educators’ informed decisions will increase litigation and inequality.Endrew F. v. Douglas County School District

Hogan Lovells| 39 Oral argument held January 11, 2017Opinion was issued March 22, 2017Decision:Vacated and remanded, 8-0Unanimous opinion written by Chief Justice RobertsEndrew F. v. Douglas County School District

Hogan Lovells| 40 Ripped from the headlines

Hogan Lovells| 41 Holding of Supreme Court:To meet its substantive obligation under IDEA, a district must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.Case was remanded to 10th Circuit for analysis of Drew’s complaint under newly-articulated standard.Endrew F. v. Douglas County School District

Hogan Lovells| 42 Court’s reasoning:The essential function of IEP is to set out plan for pursuing academic and functional advancement; it must aim to enable the child to make progress.The “reasonably calculated” standard from Rowley is more demanding than 10th Circuit’s standard, and it also recognizes the prospective expertise and judgment required of school officials to craft IEP specific to unique needs of child.Endrew F. v. Douglas County School District

Hogan Lovells| 43 Assessing whether a district has met “reasonably calculated to enable child to make progress appropriate in light of child’s circumstances” standard:Opinion outlines “a general standard, not a formula”Normally, an educational program is designed with goal of child progressing from grade to grade; if not possible, then program should be “appropriately ambitious” in light of child’s circumstancesDistricts should be able to offer “cogent and responsive explanation” for decisions made regarding student’s IEPEndrew F. v. Douglas County School District

Hogan Lovells| 44 An individual education plan (IEP) only needs to ensure a personalized, appropriate education. The federal government filed an amicus brief in support of Drew’s parents in Endrew F. The Supreme Court said both traditional education programs and IEP’s should have the goal of a child progressing. Pop quiz on Endrew F.! True or False?

Hogan Lovells| 45 The Supreme Court’s ruling in Endrew in March 2017 has affected several ongoing cases across the country: The 9th Circuit remanded the case M.C. by and through M.N. v. Antelope Valley Union High School District Case dealt with whether the state provided a FAPE for a blind childRemand order discussed Endrew as the substantive obligation under IDEA for the IEP to be reasonably calculated for progress appropriate to the child’s circumstances The 2nd Circuit affirmed the case D.B. v. Ithaca School District Case dealt with whether the school district provided an IEP legally adequate so as to provide the student with a FAPECourt found the IEP was sufficiently tailored to ensure meaningful progress, the standard outlined in Endrew Endrew F. as applied in other cases

Hogan Lovells| 46 The 5th Circuit affirmed the district court in C.G. by and through her next friends Keith and Linda G., v. Waller Independent School District Case dealt with whether Waller Independent School District (WISD) provided a FAPE under IDEA for C.G. who suffers from autism In the 2013-14 school year, dissatisfied with her progress, C.G.’s parents withdrew her from public school and placed her in private schoolC.G.’s parents sought reimbursement for the cost of private education through the Texas Education Agency which determined C.G. had been provided a FAPE The district court granted WISD summary judgment, holding that the school district did provide C.G. with a FAPE The 5th Circuit affirmed the district court ruling The 5th Circuit stated “[a]lthough  the district court did not articulate the standard set forth in Endrew F. verbatim, its analysis of C.G.'s IEP is fully consistent with that standard and leaves no doubt that the court was convinced that C.G.'s IEP was “appropriately ambitious in light of [her] circumstances.” Endrew F. as applied in other cases

Hogan Lovells| 47 A child’s education program must be “appropriately ambitious in light of his circumstances,” more than de minimis progress. Some advocates for children with disabilities say this case will help the 6.5 million students on IEPs.However, the opinion is narrow—the Court rejected the plaintiff’s argument that a special-education student should receive a “substantially equal” standard of education as typical children.There are concerns about potential rising costs of special education if more resources are needed to complete appropriately ambitious IEPs. What does Endrew F. mean for schools?

Transgender Student Rights

Gloucester County School Board v. G.G.

Hogan Lovells| 50 G.G., a student at Gloucester High School, was assigned a female sex at birth but now identifies as maleIn October 2014, the school principal began to allow G.G. to use the boys’ restroomAfter complaints from parents and students, the school board enacted a policy that requires students to use restroom and locker rooms that match their sex assigned at birthPolicy indicates that “students with gender identity issues shall be provided an alternative appropriate facility”Gloucester County School Board v. G.G.

Hogan Lovells| 51 In June 2016, G.G. challenged school board’s policy in a federal district court in Virginia, alleging violations of: (1) Constitution’s guarantee of equal protection under the law and (2) Title IX, which prohibits sex discrimination in education programsDistrict court initially rejected G.G.’s Title IX claim, finding it was barred by ED’s Title IX regulations that allow schools to provide “separate toilet, locker room, and shower facilities on the basis of sex”Gloucester County School Board v. G.G.

Hogan Lovells| 52 A divided panel of U.S. Court of Appeals for the 4th Circuit reversed district court’s decisionThe 4th Circuit relied on a January 2015 Dear Colleague Letter (DCL) from Department of Education’s Office for Civil Rights (OCR) (the letter was issued after the district court’s decision)DCL directed that “a school generally must treat transgender students consistent with their gender identity”Court acknowledged that DCL’s interpretation of ED’s Title IX regulations was “novel,” but concluded it was entitled to deferenceCourts defer to an agency’s interpretation of its own regulations as long as it is neither ambiguous nor plainly erroneous, and is the result of the agency’s “fair and considered judgment”Gloucester County School Board v. G.G.

Hogan Lovells| 53 Fourth Circuit found that ED’s Title IX regulations were “ambiguous” because do not address transgender studentsThe Obama Administration’s DCL “resolves” that ambiguity by defining the “sex” of transgender student in terms of student’s gender identityThat interpretation is not “plainly erroneous”—it has been enforced since 2014 and is in line with guidance and regulations of other federal agenciesSchool board appealed, asking the Supreme Court to hear the caseGloucester County School Board v. G.G.

Hogan Lovells| 54 Questions presented to the Supreme Court:Whether courts should extend deference to an unpublished agency letter (Dear Colleague Letter) that does not carry force of law and was adopted in context of the dispute in which deference is sought?Whether, with or without deference to ED, the Obama Administration’s interpretation of Title IX (that a funding recipient providing sex-segregated facilities must “generally treat transgender students consistent with their gender identity”) should be given effect?Gloucester County School Board v. G.G.

Hogan Lovells| 55 Oral argument initially scheduled for March 28, 2017On February 22, Trump Administration (ED and DOJ) issued a new Dear Colleague Letter to “withdraw and rescind” the March 2016 DCL in which the Obama Administration set forth its interpretation of Title IXDOJ notified Supreme Court that DOJ and ED have acted to withdraw and rescind the Obama Administration’s DCLGloucester County School Board v. G.G.

Hogan Lovells| 56 On February 23, Supreme Court asked parties to submit their views on how the case should proceedBoth parties asked Supreme Court to proceed on second question (whether school board’s bathroom policy violates Title IX and its implementing regulations) because that question is unrelated to ED/DOJ’s recent guidanceOn March 6, Supreme Court vacated and remanded case to the 4th Circuit for further consideration in light of ED and DOJ’s Feb. 22 guidanceCurrently, the school board is still not required to allow G.G. to use boys’ restroomSupreme Court had put on hold the injunction allowing G.G. to use the boys’ restroom Gloucester County School Board v. G.G.

Hogan Lovells| 57 Ripped from the headlines

Hogan Lovells| 58 On remand, on April 7, the 4th Circuit formally vacated the preliminary injunction With the preliminary injunction vacated, the school district is not required to let G.G. use the boys restroomThe 4th Circuit also denied G.G.’s request that his challenge be heard on an abbreviated schedule, in order to be heard before graduation Next opportunity for the 4th Circuit to hear the case is in September 2017School board argued against expeditingSaying the Trump administration revoking the guidance shifted the case premise exclusively to a question of Title IX interpretation (instead of administrative agency guidance) Gloucester County School Board v. G.G.

Hogan Lovells| 59 The 4th Circuit did not provide reasoning on vacating the preliminary injunction In a concurring opinion, Judge Davis of the 4th Circuit praised G.G. Described G.G. as among “modern-day human rights leaders” and noted the “case is about much more than bathrooms” Gloucester County School Board v. G.G.

Hogan Lovells| 60 Ripped from the headlines

Hogan Lovells| 61 1) With the Trump Administration’s withdrawal of the “Dear Colleague” letter guidance, the case is finished.2) Transgender students in Gloucester County are currently allowed to use the bathroom of their gender identity.3) The 4th Circuit’s decision will presumably apply to North Carolina, South Carolina, Virginia, West Virginia, and Maryland. Pop Quiz on Gloucester! True or False?

Hogan Lovells| 62 The school in Gloucester County does not have to permit students to use bathrooms corresponding with their gender identity. The case has not been decided on the merits. The 4th Circuit will still have to decide if prohibiting students from using the bathroom of their gender identity is a violation of Title IX and the Equal Protection Clause of the 14th Amendment. What does Gloucester County School Board mean for schools?

Whitaker v. Kenosha Unified School District (7 th Circuit)

Hogan Lovells| 64 Whitaker v. Kenosha Unified School DistrictAsh Walker is 17 year old transgender boy who suffers from vasovagal syncope which renders him susceptible to seizures if dehydratedIn the spring of sophomore year, Ash and his mother request that school officials permit Ash to use the boys’ restroom, the school responded by stating he could only use the gender neutral or girls’ restroom Concerned about how using the girls’ restroom might undermine his transition, and that using the boys’ restroom would cause discipline issues, Ash restricted his water intake As a result, Ash showed symptoms of his vasovagal syncope

Hogan Lovells| 65 Whitaker v. Kenosha Unified School DistrictAsh initially filed an administrative complaint with the U.S. Department of Education in May 2016, but then withdrew the complaintAsh then commenced the action against the school districtAsh moved for a preliminary injunction, seeking an order granting him access to the boys’ bathroomAsh alleged the unwritten school policy to not allow him to enter the boys restroom violated Title IX, Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause The federal district court granted Ash’s preliminary injunction

Hogan Lovells| 66 Whitaker v. Kenosha Unified School DistrictSchool District appealedClaimed Ash had a low likelihood of success as a protected class under Title IX and argued the policy has a “rational basis”On May 30th, the 7th Circuit unanimously upheld a preliminary injunction Injunction stops the Kenosha Unified School District’s bathroom policy from being enforced—Ash cannot be prevented from using the boys restroom

Hogan Lovells| 67 Whitaker v. Kenosha Unified School DistrictThe 7th Circuit decision interpreted both Title IX and the Constitution as protecting transgender students from discrimination Courts Reasoning: Ash is likely to suffer irreparable harm without injunctive relief Ash can demonstrate a likelihood of success on the merits of his claim Ruling means the school must allow students to use the bathroom that matches their gender identity

Hogan Lovells| 68 Pop Quiz on Whitaker! True or False?The 7th Circuit decision stated the policy stopping a student from using the bathroom of their gender identity “punishes that individual for their gender non-conformity.” The holding in Whitaker is binding throughout the 7th Circuit: Illinois, Indiana, Wisconsin. Ash will be able to use the boys restroom next year.

Hogan Lovells| 69 Ripped from the headlines

Hogan Lovells| 70 The Supreme Court has yet to rule on the specific issue: whether prohibiting students from using the bathroom of their gender identity is a violation of Title IX and the Equal Protection Clause of the 14th Amendment. Without a Supreme Court ruling, many schools are looking to the Department of Education for guidance and regulations, especially in light of the rescission of the Obama Administration guidance. Most recent guidance came out in June directing schools to use “Title IX and its implementing regulations, as interpreted by courts and OCR, in evaluating complaints of sex discrimination.”The split in Appellate Circuits and rise in number of cases surrounding this issue mean it may still reach the level of Supreme Court scrutiny. What does Gloucester and Whitaker mean for schools generally?

District cases , state legislation related to Gloucester County School Board v. G.G.

Hogan Lovells| 72 Texas House: Senate Bill 2078 On May 22, the Texas House voted to amend Senate Bill 2078—which is a bill addressing emergency operation plans The amendment passed 91-50 but still needs a final approval by the state Senate Amendment added bathroom restrictions preventing transgender students form using bathrooms that match their gender identity The proposal requires transgender students who do not wish to use the bathroom based on their “biological sex” to use single-stall restrooms, locker rooms, and changing facilities Last change was on June 4 th when the Bill was sent on to Texas Senate

Hogan Lovells| 73 Ripped from the Headlines

Hogan Lovells| 74 New Jersey: Bill A4652 On June 29 th New Jersey state legislature passed a proposal providing key protections for transgender students; Bill is waiting on Gov. Chris Christie for consideration Bill expressly states schools are NOT permitted to force transgender students to use bathrooms/locker rooms that conflict with their gender identities—instead schools must provide “reasonable alternative arrangements” Bill also requires: Schools ensure students are addressed by the name and pronoun they prefer,; Schools must permit students to dress according to their gender identity; Schools must create confidentiality plans to avoid inadvertently disclosing a transgender student; Schools allow students to participate in gym class with the gender that matches their identity Last year, the state Department of Education said school districts should pass policies explaining how they will address issues related to gender identity but the bill requires the state education commission to send specific guidelines to school districts

Hogan Lovells| 75 Ripped from the Headlines

Hogan Lovells| 76 Students and Parents for Privacy v. School Directors of Township High School District 211 Students and parents in Cook County, Illinois sued the School Directors of Township High School District 211 in May 2016 Sought an injunction that would require the school to segregate restrooms and locker rooms on the basis of biological sex Also sought to enjoin the Districts 2013 policy which allowed transgender students to use restrooms consistent with heir gender identity

Hogan Lovells| 77 Students and Parents for Privacy v. School Directors of Township High School District 211 Questions presented: Whether the term “sex” in Title IX encompasses gender identity Whether the right not to share a restroom with a transgender student is considered a right to privacy

Hogan Lovells| 78 Students and Parents for Privacy v. School Directors of Township High School District 211 Magistrate Judge of N.D. Illinois recommended denying the injunction On May 22, 2017, the plaintiffs asserted they will not be dropping a lawsuit just because the transgender student who spurred the legislation has graduated Plaintiff’s believe the suit is not moot based off of the legal principle called “capable of repetition yet evading review” As of June 29 , 2017, the federal district court in Illinois has not ruled on the injunction

Hogan Lovells| 79 Ripped from the Headlines

Public funds for private or religious schools

Trinity Lutheran Church v. Comer

Hogan Lovells| 82 Background: In 2012 Trinity Lutheran Church applied for a state grant to purchase recycled tire rubber to repave the playground of their early childhood centerNon-profit applicants were ranked by Missouri’s Department of Resources where Trinity came in 5th of 44 applicants The top 14 candidates received fundingBut Trinity was deemed ineligible based on the state constitution which says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion”Trinity Lutheran Church v. Comer

Hogan Lovells| 83 Procedural history:Trinity Lutheran Church sued alleging the state’s Department of Natural Resource policy violated the free exercise clause of the First Amendment The federal district court for the Western District of Missouri dismissed the case in 2013Trinity appealed, a divided panel of the 8th Circuit affirmed the district courts dismissal The Supreme Court granted certiorari in January 2016Trinity Lutheran Church v. Comer

Hogan Lovells| 84 Question Presented:Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern?Trinity Lutheran Church v. Comer

Hogan Lovells| 85 State’s Argument:The State is not prohibiting Trinity Lutheran from engaging in religious conduct The Department is declining to allocate funds to Trinity, which the State has no obligation to provide Trinity’s Argument: The automatic disqualification from participation in the benefits on the basis of religious affiliation conditions the benefit, which has the effect of punishing the free exercise of religion Did not argue “entitled” to the benefit, but rather, the Center should not be excluded on the basis of religionThe grant funds would be used for a secular purpose—repaving a playgroundTrinity Lutheran Church v. Comer

Hogan Lovells| 86 Holding of the Supreme Court:The Missouri Department of Natural Resources' express policy of denying grants to applicants owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.Reversed and remandedTrinity Lutheran Church v. Comer

Hogan Lovells| 87 Supreme Court’s reasoningThe Missouri Department of Natural Resources' policy essentially forced Trinity Lutheran into a decision: either participate in an otherwise available benefit program or remain a religious institution.The grant funds purpose is clearly secular, unlike other cases where public benefits have been denied when the funds would be applied to a religious purpose.Reversed and remandedTrinity Lutheran Church v. Comer

Hogan Lovells| 88 Justice Gorsuch concurred in all of the judgment, except footnote 3 which states “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” After the ruling Secretary Betsy DeVos released the following statement:“This decision marks a great day for the Constitution and sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment. We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”Notes on Trinity Lutheran Church v. Comer

Hogan Lovells| 89 Ripped from the headlines

Hogan Lovells| 90 The Supreme Court’s ruling in Trinity Lutheran means religious schools can always receive public funds. The Trinity Lutheran school was arguing they were entitled to the playground grant. The Court’s holding did not address public funding for religious uses. Pop Quiz on Trinity Lutheran! True or False?

Hogan Lovells| 91 Important to note that the ruling is relatively narrowTrinity Lutheran is entitled to participate in the grant program, not entitled to a grant Trinity Lutheran’s participation was based on purely secular aims in paving a playground Church and private school advocates praised the decision as restoring equal protection and enabling funding to reach institutions with outreach programs for the public good despite being religious or private Critics are concerned the ruling enables religious schools to receive public funds, yet those schools can exclude children or students on the basis of religious preference/tradition The Court also vacated two related cases in light of Trinity Lutheran:New Mexico Association of Nonpublic School v. Moses (involving a text-book lending program for private schools) Colorado State Board of Education v. Taxpayers for Public Education (involving a tuition-scholarship program for students to attend private schools, including religious schools, Colorado Supreme Court ruled that the Choice Scholarship Program violated the state Constitution) Colorado and Missouri are among 39 states that “Blaine Amendments” which are strict prohibitions on public funding for religious schoolsWhat does Trinity Lutheran Church v. Comer mean for schools?

ED regulations and guidance under the Trump Administration

Hogan Lovells| 93 On February 22, the Trump Administration withdrew and rescinded the Obama Administration’s Dear Colleague Letter (which is not technically a regulation, but rather is a guidance document) on transgender students under Title IX In June 2017, the Department of Education’s Office for Civil Rights told regional directors to not rely on rescinded guidanceOCR told regional directors to refer to “Title IX and its implementing regulations, as interpreted by courts and OCR, in evaluating complaints of sex discrimination” made by transgender studentsThe new guidance seems to refers to resolving transgender issues using older guidance that was issued to address “a hostile environment” under the Department’s guidance on bullying issued in 2010Education guidance under the Trump Administration

Hogan Lovells| 94 Secretary DeVos has expressed that local and state communities may be better equipped than the federal government to deal with issues of regulation Some of the Obama Administration’s planned regulations were not finalized because the administration ran out of time to issue a final ruleImplementation of some regulations was delayed only to be revoked, for example:ESSA Accountability and State Plans---orig. effective date: Jan. 30, 2017; delayed effective date: March 21, 2017Then Congress passed Public Law 115-13 on March 27, 2017 which “disapproves the rule submitted by the Department of Education relating to accountability and State plans under the Elementary and Secondary Education Act of 1965” and renders the rule having no force or effect Education Regulations under the Trump Administration

Hogan Lovells| 95 On March 27th, the Trump Administration acted under the Congressional Review Act to nullify Obama Administration rules relating to:(1) State accountability requirements under the Every Student Succeeds Act and (2) the assessment of teacher preparation program quality As part of the Trump Administration’s “rollback” of “burdensome” regulations the Education Department asked the public for feedback on which education regulations to eliminate Comments have ranged from eliminated the Education Department altogether to eliminating the common core curriculum Education Regulations under the Trump Administration

Wrap Up/Questions

Hogan Lovells| 97 Questions? Reach out to us.Maree SneedPartner, Washington, D.C.T 202 637 6416maree.sneed@hoganlovells.com Sarah Ruckriegle Summer Associate, Washington, D.C.T 202 637 6528sarah.ruckriegle@hoganlovells.com

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