Third Circuit Upholds Previous Decision in Boyertown Transgender Case (May 26, 2018)

On Thursday, in Philadelphia, a panel of Third Circuit Appeals Court judges unanimously affirmed a lower court’s ruling, upholding the Boyertown Area School District’s practice of allowing transgender students to use the same restrooms and locker rooms as other students. The case, Doe v. Boyertown Area School District, was filed during the 2016-17 school year by students who claimed that the school district’s policy “violated the students’ bodily privacy rights” when it decided to implement a policy that allowed students to use the restroom facilities that correspond to their gender identity. They further argued that the new policy violated their constitutional right to privacy, as well as Title IX, a federal statute that prohibits sex discrimination in education.

It took less than 20 minutes for the three-judge appeals court panel to emphatically reject arguments made on behalf of the students by the Alliance Defending Freedom (ADF), a conservative law firm intent on legalizing anti-LGBTQ discrimination through the courts.

Lawyers for the school district have contended that it has made reasonable accommodations to ensure that no one is forced to forfeit his or her privacy. They have also averred that the school district faces an equal protection claim if it fails to continue allowing transgender students to use the bathroom of their choice.

Despite the stunningly swift appeals court decision, the plaintiffs have stated that they will continue their legal fight.

The judges plan to issue a written opinion during the summer of 2018, which will further spell out their reasoning in a ruling that adds to a mounting body of decisions in favor of transgender students.

OCR Dismisses Hundreds of Cases as a Result of New Policy (April 23, 2018)

The US Education Department’s Office for Civil Rights (OCR) has begun to dismiss hundreds of civil rights complaints in accordance with a new procedure that allows investigators to disregard cases which are either part of serial filings or which they deem burdensome to OCR.
The new procedure is supposed to mitigate the burden on OCR that occurs when advocates flood the office with thousands of complaints for similar violations, which the office asserts hinders its ability to investigate other cases. However, there are many who see this as proof of a more “hands-off” approach to investigating civil rights claims and enforcing civil rights laws, which could result in discriminatory behavior being allowed in public schools and institutions across the country.
A new policy provision allows the OCR to dismiss cases that reflect “a pattern of complaints previously filed with OCR by an individual or a group against multiple recipients,” or complaints “filed for the first time against multiple recipients that” place “an unreasonable burden on OCR’s resources.” The new provision has already resulted in the dismissal of more than 500 disability rights complaints.

Secretary DeVos Meets With Educators as She Considers Rolling Back Civil Rights Guidance (April 9, 2018)

On the same day that the non-partisan Government Accountability Office (GAO) issued a report that showed K-12 African-American students, male students, and students with disabilities are disproportionately disciplined, Education Secretary Betsy DeVos personally met with educators, including NEA representatives, who either supported or opposed previous guidance issued by both the USDE and the US Department of Justice. DeVos will decide whether to discard, keep, or alter the 2014 guidance warning that schools could be found in violation of federal civil rights laws if they intentionally discriminate against students on a racial basis.

Congress Passes Spending Plan Increasing Money for Education, School Safety (March 24, 2018)

Congress has agreed on a fiscal 2018 spending plan that includes funding for school safety measures and does not include several changes and cuts sought by President Trump, who had called for a $9.2 billion cut in discretionary education spending. The approved plan would increase spending by $2.6 billion over previous 2018 fiscal year levels. Increases will be seen in Title I programming; Special education grants; Title IV block grant funding that could be used for, among other things, school safety; funding for 21st Century Community Learning Centers, charter school aid, and additional investments in early childhood programs. Funding for Title II programs that provide for professional development for educators is level-funded. There is no funding for either a proposed $250 million private school choice initiative or a $1 billion program to encouraged open enrollment in school districts. The spending plan also includes provisions under the Students, Teachers, and Officers Preventing (STOP) School Violence Act, providing $75 million in funding for school safety purposes such as metal detectors, lighting, locks, and other safety and security tools, including school safety assessments.

DeVos Proposes 2019 USDE Budget and Clarifies USDE Stance on Transgender Bathroom Use

President Donald Trump and Secretary of Education Betsy DeVos have released their proposed budget for the 2019 fiscal year, which channels more than $1 billion to be spent on private school vouchers and other school choice plans. The budget proposal also calls for cutting $3.6 billion from the USDE by eliminating a total of 29 discretionary programs, including federal funding for some after-school programming for needy children; eliminating funding for the $2 billion Supporting Effective Instruction State Grants Program (Title II, Part A) of the Every Student Succeeds Act (ESSA) as well as the $1.2 billion 21st Century Community Learning Centers program (21st CCLC, Title IV, Part B) of the ESSA; professional development for teachers; Special Olympics; and a grant program for college students with exceptional financial need. The budget proposes the deepest funding cuts to the USDE since the Reagan administration was in office. Last year, USDE rolled back steps taken by the Obama administration that protected transgender students when it came to the right of transgender students to use the restroom at school that corresponds with their gender identity. Now the USDE, under the leadership of DeVos, has stated that it will not hear complaints about or take action on the right of transgender boys or girls to use the school restroom that corresponds with their gender identity. Recently, USDE had dismissed several discrimination cases regarding transgender student bathroom use. The reasoning now used by the USDE is that Title IX does not prohibit discrimination on the basis of gender identity. Similarly, access to accommodations such as restrooms, or presumably locker rooms, based on the sex of the student and not gender identity is also not considered a form of discrimination prohibited by Title IX. Opponents to this position claim that this new policy statement is contrary to court rulings on these issues which have stated that denying transgender students appropriate bathroom access in accordance with their gender identity is a violation of Title IX.