As a Tennessee district learned in S.C. v. Metropolitan Government of Nashville, No. 22-5125 (6th Cir. 11/15/23), harassment or bullying that occurs under a district’s watch after a charge of sexual harassment has been raised can itself be a form of discrimination based on sex.

A high school student was video recorded engaging in a sexual activity with a classmate on school property, but the student did not consent to either the sexual contact or its video recording. The video rapidly spread on social media and third-party websites, including pornography-distributing outlets.

Although a school representative arranged for the student and her mother to come to school to discuss the incident, the school’s principal never involved the district’s Title IX coordinator. Prior to the meeting, the student’s mother gave the principal a list of students who sent threats against the student and her family.

The meeting was not recorded, and its substance was disputed. According to the principal, the student said in the meeting that the activity had been consensual, but at trial, the District Court concluded that even if the student did not describe the encounter as a rape explicitly, “she more than likely did not describe the encounter as welcome or consensual.”

At the conclusion of the meeting, the principal suspended the student for three days.
After her suspension, the student entered an in-patient facility for support and treatment services and continued coursework remotely. When the student was discharged from the facility, the family moved to a different county due to continued threats.

The student’s grades dropped substantially, she began abusing drugs and alcohol, she withdrew from socializing, and she engaged in self-harm. At the time of trial, four years after the incident, she still suffered from severe mental health disorders, including post-traumatic stress disorder.

The student sued under Title IX, and her claim was consolidated with those of three other students who also alleged that they were video recorded while experiencing unwanted sexual contact.

Eventually, the District Court found the district liable under Title IX, concluding that the threats made against the student and her family triggered the district’s Title IX duties to prevent gendered interference with the student’s education. The District Court found that the unwanted sexual encounter and spread of the video afterward was sufficiently traumatic that it amounted to a risk of disrupting the student’s education and implicated the district’s Title IX responsibilities.

The District court awarded the student $75,000 in damages, prompting the district to appeal to the 6th U.S. Circuit Court of Appeals.

Title IX prohibits discrimination based on sex in any education program receiving federal funding. Under Title IX, districts can face liability for deliberate indifference to known acts of student-on-student sexual harassment where the harasser is under the school’s disciplinary authority.

In affirming the District Court’s ruling in the student’s favor, the 6th Circuit explained that the district was aware of continuing and severe threats made against the student but “did nothing in response” beyond directing the student to police.

“Some of these threats were made during school hours or, at a minimum, in connection with the school environment,” the 6th Circuit wrote. “As a result of the school’s inaction, the threats and harassment continued.”

The 6th Circuit upheld the $75,000 emotional distress damages award.

‘Gravamen’ of student’s IDEA claim about hearing impairment doesn’t preclude her ADA case

Those who have followed special education in the U.S. Supreme Court for the past six or seven years will have heard of the Fry and Perez cases that provide the standards for what happens when an ADA or Section 504 claim is about something the IDEA covers.

However, as a federal appeals court pointed out in the case of a Texas student in Lartigue v. Northside Independent School District, No. 22-50854 (5th Cir. 11/16/23), even courts don’t always accurately apply those standards.

A high school student with a hearing impairment used a hearing aid and required interpretation services. The student had an IEP, but, according to the student, the district failed to properly accommodate her hearing impairment as required by the IEP. For example, the student claimed that:

1. The district repeatedly failed to provide closed captioning for films and videos shown in class.
2. The district failed to ensure that two interpreters were available at all times so that one interpreter would be available if the other needed to take a break.
3. The counseling services the student requested were provided out in the open hallways of the school, which allegedly deprived the student of the confidentiality and privacy required for counseling to be effective.
4. The district’s failure to timely provide the student with communication access real time, or CART, translation services for a live debate competition left her unable to fully participate in the extracurricular activity.

The student’s parents sued under the IDEA and the Americans with Disabilities Act. The parents also filed a complaint with the state education agency, contending that the district failed to provide FAPE. A hearing officer concluded that the district satisfied the IDEA’s requirements and provided the student with FAPE.

After the administrative proceedings concluded, the District Court found that the student has satisfied the IDEA’s exhaustion requirements and thus could move ahead with her ADA lawsuit.

The district moved for summary judgment, which the District Court initially denied. However, on the district’s motion for reconsideration, the court reached a different conclusion, finding that the student did not have a standalone claim under the ADA because the essence of her complaint was the denial of FAPE.

The student appealed to the 5th U.S. Circuit Court of Appeals.

Based on U.S. Supreme Court rulings, under the IDEA, in a suit against a public school for alleged violations of the ADA or other similar anti-discrimination statutes, courts first assess whether the “gravamen”—or crux—of the complaint concerns the denial of a FAPE or, instead, is based on disability discrimination.

If the complaint does not concern the denial of a FAPE, then the plaintiff need not go through the IDEA’s administrative hurdles. On the other hand, if the complaint is predicated on a FAPE denial, then the court must ask what relief is sought. If the relief sought is not one that the IDEA can provide, such as compensatory damages, then, again, the plaintiff need not go through the IDEA’s administrative hurdles.

But if the relief sought is of the type that the IDEA offers, then the plaintiff must fully exhaust the administrative processes as required by the IDEA.

Based on what the Supreme Court has held, the 5th Circuit found that the district court committed “reversible error.”

In particular, the 5th Circuit noted that nothing in the IDEA restricts or limits a plaintiff’s ability to assert an ADA claim, even if the gravamen of her complaint was the denial of FAPE. Instead, if the central focus of an ADA claim is about FAPE, then the IDEA requires that the plaintiff exhaust administrative remedies before heading to court, which is what happened in the student’s case when the hearing officer ruled on the IDEA charge.
Because it found that the District Court’s order was contrary to the text of the IDEA, the 5th Circuit vacated the grant of summary judgment and remanded the case.

A dissenting judge in the case would have affirmed on grounds of collateral estoppel, which applies when the issues of fact that make up a claim are the same as those in an already-decided previous claim. According to this judge, the student’s ADA claim brought up the same issues as her IDEA claim, on which she was unsuccessful in the administrative hearing.

Faulty elevator raises disability discrimination problems for S.C. district

It’s not often the case, but situations may arise where repair crews and maintenance staff hold the keys to whether a district is compliant with disability law.

In Horry County Schools, No. 11-23-1154 (OCR 07/14/23), OCR recently determined that a non-functioning elevator put a South Carolina district on the wrong side of Section 504’s and ADA Title II’s accessibility requirements and may have led to a FAPE denial.

A complaint filed with OCR alleged that because the district did not properly maintain and repair an elevator, two students with disabilities were denied access to some of their classes. As acknowledged in a statement by the principal, the elevator was out of service, either partially or completely, for the better part of five months. Additionally, during a videoconference attended by district staff, the company that serviced the district’s elevator confirmed that the elevator in question would continue to be out of service beyond the end of the school year.

The district provided one of the students with an accommodation that involved the student taking a course online in a first-floor media center. However, the teacher of the course asserted that this accommodation was not fair to the student because it resulted in his being isolated from the rest of the class and denied him the opportunity students in the class had to collaborate with other students.

Additionally, the media specialist, whose duties did not include assisting the student, was not available to the student in the media center because he was assisting the substitute teacher in the classroom while the teacher was on maternity leave.

Although the student requested that the class be taught in a first floor classroom, the principal insisted on the student’s attending class from the media center. According to the student, this caused him to experience panic attacks.

Regarding the other student, the district claimed that it accommodated her by allowing her to work in a downstairs location of the building. Although the principal reported otherwise, the student and teacher reported to OCR that they were not satisfied with this arrangement.

Under Section 504 and ADA Title II, districts must ensure that their facilities are accessible to and usable by people with disabilities so they are not excluded from a district’s programs or activities. A district must maintain accessible features and equipment in operable working condition, although temporary or isolated interruptions or mechanical hiccups are acceptable if they do not persist beyond a reasonable period of time.

Based on its investigation, OCR determined that the fact that the elevator was inoperable for most of the school year denied students with disabilities, including the two at issue in the case, access to district programs and activities and may have resulted in a denial of FAPE.

As a result, the district entered into a resolution agreement with OCR.

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Such was the case in Guevara v. Chaffey Union High Sch. Dist., No. 22-56023 (9th Cir. 10/30/23), in which the 9th U.S. Circuit Court of Appeals agreed with the District Court below that a California district conducted a “reasonably thorough” and “extensive” evaluation before determining that a high schooler with an unspecified disability did not qualify for special education.

The student had emigrated from Honduras to live with relatives in California. He had not attended school since the sixth grade and did not speak English.

The student’s guardians requested a due process hearing, alleging that the district had failed to evaluate the student for special education eligibility, thereby denying him FAPE under the IDEA.

The district assessed the student using “various assessment tools and strategies,” and the district concluded that the student was ineligible for special education. According to the district, the student’s difficulties in school were attributable to his gaps in education and his unfamiliarity with English.

In the due process proceedings, the administrative law judge found that the district’s assessment was adequate and that its conclusion regarding special education eligibility was reasonable. In court, the District Court agreed with the ALJ’s decision and entered judgment in the district’s favor. The student appealed to the 9th Circuit.

Under IDEA case law, a procedural violation alone cannot qualify an otherwise ineligible student for IDEA relief. According to the 9th Circuit, in ruling in the district’s favor, because the district undertook a “thorough assessment” of the student and reasonably concluded he was ineligible for special education services, the district met its IDEA responsibilities.

In so deciding, the 9th Circuit highlighted that the ALJ reasonably concluded that the district’s evidence, including its direct classroom observation and “extensive” assessment of the student, was more persuasive than the student’s evidence.

The 9th Circuit affirmed the District Court’s ruling.

District Court rejects high school volleyball player’s request for judicial secrecy in Title IX case

Understandably, a student-athlete would want privacy when alleging that her coach subjected her to sex discrimination. However, as the court in Junker v. Mascoutah Community School District 19 Board of Education, No. 3:22-cv-1962-DWD (10/03/23) pointed out, courts tend to disfavor secrecy in judicial proceedings, even when they involve public school students.

A varsity volleyball coach for an Illinois district allegedly subjected team members to “demoralizing and degrading activities.” After becoming aware that one of the players met with a counselor at the school and that the counselor met with three of the player’s teammates, the coach allegedly “scolded” all four and imposed conditions on their ability to stay on the team.

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Alleging that the district failed to take action to protect the player or discipline the coach, the player sued under Title IX. After the court denied the district’s motion to dismiss, the parties sought a 60-day order to consummate a settlement of the case.

After the 60-day order was entered, the player sought a protective order allowing a sealed briefing of a motion to enforce the parties’ settlement agreement and a motion for sanctions. According to the player, her case had “picked up media attention” and a protective order would, among other things, “serve [ ] a legitimate and compelling interest of protecting a bargained for and binding non-disclosure and non-disparagement contracted interest” and that the request would allegedly “avoid disclosures of confidential information to the public and keep compliance with the non-disclosure, non-disparagement, and confidentiality agreements.”

Courts generally disfavor secrecy because, as the court in the case explained, “it renders it difficult for the public to understand why the case was brought, why it was litigated, the interests at stake, and whether the outcome was proper.”

Under the principle of judicial transparency, the court determined that there was no good cause for the sealing of the filings.

“Aside from passing references to media attention, the only bases provided to the Court for that relief are the existence of non-disclosure, non-disparagement, and confidentiality agreements between the parties as well as associated concerns,” the court wrote. “As the above authorities make clear, those bases alone are insufficient to outweigh the public’s interest in these judicial proceedings, i.e., in the Court’s decision on any motion to enforce a settlement agreement.”

Thus, the court denied the player’s request.

Cardona emphasizes resources for districts, states to support immigrant students

In a Dear Colleague letter, U.S. Education Department Secretary Miguel Cardona offered ED resources that districts can turn to in supporting immigrant students.

Citing the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), Cardona specified that “all children in the United States have an equal right to enroll and participate in public elementary and secondary schools without regard to their or their parents’ or guardians’ immigration status.”

Cardona also noted that local education agencies must provide students who are not citizens or do not have immigration documentation with equal access to a public elementary and secondary education, regardless of their or their parent’s actual or perceived national origin, citizenship, or immigration status, and determine whether the student is eligible, on the same basis as any other student, to participate in programs supported with local, State, and federal funds.

The following are resources that Cardona’s letter directed districts to use:

Newcomer Toolkit. Originally published in 2016, this toolkit contains: 1) discussion of topics relevant to understanding, supporting, and engaging newcomer students and their families or guardians; 2) tools, research-based strategies, and examples of classroom and schoolwide practices in action; 3) professional learning activities for use in staff meetings or professional learning communities; and 4) resources for further information and assistance. In addition, the toolkit encourages asset-based and trauma-informed approaches and a focus on equity and inclusivity and features the Dual Capacity Framework for building school-family partnerships.

English Learner Toolkit. This toolkit covers legal requirements, including the civil rights of families of newcomer students.

ESSER Funds. Cardona reminded districts that as the period of availability for COVID-19 relief nears its end, state educational agencies and their LEAs may use funds under the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund to address the impact of the COVID-19 pandemic on immigrant students.

ARP Funds. Additionally, the American Rescue Plan Elementary and Secondary School Emergency Relief—Homeless Children and Youth funds may be used by states to address urgent needs of children and youth experiencing homelessness—including academic, social, emotional and mental health needs. These funds must be obligated by Sept. 30, 2024.

ESEA Title I, Part A. Under ESEA section 1115(e)(2), a Title I school that operates a targeted assistance program may use a portion of its Title I funds to provide comprehensive services, such as health, nutrition, and other social services if such services are not otherwise available to eligible students.

English Language Acquisition Program. Title III, Part A funds can be used to supplement language instruction educational programs and activities that increase the knowledge and skills of teachers who serve English learners.

EHCY Program. The Education for Homeless Children and Youth Program, which is authorized by the McKinney-Vento Homeless Assistance Act, allows funds to be used for, among other things: 1) defraying the excess cost of school of origin transportation, including for school-sponsored extracurricular and family engagement activities; 2) tutoring, counseling, and management of referrals to health care and other necessary services; and 3) the provision of other extraordinary or emergency assistance needed to enable children and youth experiencing homelessness to attend school and participate fully in school activities, which can include items such as hygiene products, school supplies, and clothing.

Student Support and Academic Enrichment Program. This is an ESEA Title IV, Part A program that is intended to improve students’ academic achievement by increasing the capacity of states, LEAs, schools, and local communities to 1) provide all students with access to a well-rounded education; 2) improve school conditions for student learning; and 3) improve the use of technology to improve the academic achievement and digital literacy of all students, including immigrant students.

Discretionary Grants. For example, the National Professional Development grants program under Title III of the ESEA supports professional development activities that are designed to improve classroom instruction for students who are English learners and assist educational personnel working with such children to meet high professional standards, including standards for certification and licensure as teachers who work in LIEPs or serve students who are ELs.

Workforce Innovation and Opportunity Act. Under WIOA Title II, funds are available to support English language acquisition and integrated English literacy and civics education. Immigrants are eligible regardless of immigration status or employment authorization unless restricted by the State, provided they meet the law’s eligibility requirements.

Additionally, Cardona urged districts to coordinate efforts with state and local agencies for additional funding and housing, health, and child welfare services that may be available to support immigrant students.

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