Category: Federal Government Actions

CDC Releases New COVID-19 Guidance for Schools; The Vaccinated Don’t Need Masks (July 12, 2021)

On July 9,2021, the Centers for Disease Control and Prevention (CDC), citing a return to in-person learning as a priority, Ā updated its COVID-19 guidelines, which state that vaccinated teachers and students do not need to wear masks inside school buildings.

However, the CDC continues to recommend that persons two years-old and up who aren’t vaccinated continue to wear masks indoors and to keep a social distance of three feet. With regard to schools, this would include students and staff.

At the present time, children as young as 12 years old are eligible to be vaccinated and vaccines have been shown to be effective against the disease and its variants.

To access the CDC guidance, click here.

SCOTUS Declines to Hear LGBTQ Student Rights Bathroom Case (June 28, 2021)

On June 28, 2021, the U.S. Supreme Court (SCOTUS) announced that it would not hearĀ GrimmĀ v. Gloucester County School Board, a case that had the potential to decide whether schools are violating LGBTQ students’ rights when they prohibit them from using facilities (e.g., locker rooms and bathrooms) that align with their gender identity.

Although a decision on the 2015 case would have settled a debate over whether Title IX includes protections for LGBTQ students against sex discrimination, declining to hear oral arguments means the lower court’s decision in favor of Grimm still stands, leaving Grimm’s attorney and supporters to claim the Court’s decision as a victory for Grimm and other transgender students.

For more on the case from K12Dive, click here.

SCOTUS Decision Re Mahanoy Area v. B.L.: B.L.’s Discipline is Overturned, But who “Won” the Case? (June 26, 2021)

On Wednesday, June 25, 2021, the US Supreme Court (SCOTUS) ruled on the Mahanoy Area School District appeal in the free speech case of  Mahanoy Area v. B.L.. While the decision was obviously a loss for Mahanoy with respect to the discipline of B.L., it is also seen by some as an overall a victory for public schools (and Mahanoy generally), in that they were able to get the ā€œTinker doesnā€™t apply at all to off-campus speechā€ rule from the Third Circuit overturned. The Court also reaffirmed a schoolā€™s authority to discipline for off-campus bullying and harassment, at least when it is serious.  So, from the school’s standpoint, the decision was not a total loss and may have actually been a “win.”.

To read a more in-depth analysis ofĀ the decision,Ā click here.

PAPSA had submitted an Amicus Curaie Brief in support of the school district in this case, which can be viewed by clicking here.

SCOTUS Rules in Favor of Student in Free Speech Case (June 23, 2021)

On Wednesday, June 23, 2021, in an 8-1 vote, the U.S. Supreme Court (Court) declared that, although school administrators have the power to punish student speech that occurs online or off campus if it is disruptive to the school setting, Ā in the case of Mahanoy Area School District v. B.L. curse words posted from off campus did not adequately rise to the definition of disruptive. Thus, the foul language featuring “F-bombs” on Snapchat by a disgruntled cheerleader was deemed to be protected speech under the First Amendment.

Justice Stephen Breyer, writing for the Court’s majority, stated that, Ā “While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”

Justice Clarence Thomas dissented, suggesting that the rule of thumb has been that schools can regulate off-campus speech if it could be determined to be harmful to the school, including students and staff. In this particular case, Justice Thomas stated that he felt such standard was met.Ā  He stated that, “The courtā€™s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the courtā€™s opinion today means,” Thomas wrote.

Thus, what was viewed as a potential landmark case with regard to off-campus speech was instead a very narrow ruling, leaving the door open for debate as to when schools can regulate off-campus speech as well as when they cannot do so. It has been left to future cases to produce such guidance.

In the words of Justice Breyer, “The schoolā€™s regulatory interests remain significant in some off-campus circumstances,” Breyer wrote. “Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as ā€œoff campusā€ speech and whether or how ordinary First Amendment standards must give way off campus.”

To view the Court’s decision, click here.

USDE Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity (June 17, 2021)

On Wednesday, June 16, 2021, the U.S. Department of Education’s (USDE) Office for Civil Rights (OCR) issued aĀ Notice of Interpretation explaining that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance.

USDE’s interpretation stems from the landmark U.S. Supreme Court decision in Bostock v. Clayton County, issued one year ago this week, in which the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex.

“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion, and discrimination ā€“ and our LGBTQ+ students have the same rights and deserve the same protections. I’m proud to have directed the Office for Civil Rights to enforce Title IX to protect all students from all forms of sex discrimination,” said U.S. Secretary of Education Miguel Cardona. “Today, the Department makes clear that all studentsā€”including LGBTQ+ studentsā€”deserve the opportunity to learn and thrive in schools that are free from discrimination.”

As OCR recentlyĀ reported, LGBTQ+ students often face additional challenges in schools, including disproportionately experiencing persistent bullying, harassment, and victimization. The vulnerability of LGBTQ+ students has only increased during the COVID-19 pandemic, leaving them without access to school-based mental health services and other supports. OneĀ surveyĀ found that 78 percent of transgender and nonbinary youth reported that their mental health was “poor” either most of the time or always during COVID-19, compared with 61 percent of cisgender youth.

The Notice of Interpretation continues OCR’s sustained effort to promote safe and inclusive schools for all students, including LGBTQ+ students. This action is part of the Biden-Harris Administration’s commitment to advance the rights of the LGBTQ+ community, set out in President Biden’sĀ Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender IdentityĀ and theĀ Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

The Department of Education’s Notice of Interpretation is availableĀ here.Ā 

More information and resources for LGBTQ+ students are availableĀ here.