School employees sometimes request a waiver of school policy due to their sincere religious beliefs. For example, there have been a number of cases involving the wearing of religious garb at school. Recently we have seen a few cases of teachers who refuse to refer to transgender students by their preferred pronouns, citing a religious belief as the reason for this refusal. How to respond to such requests?

Groff v. DeJoy is not about pronouns, but it does provide guidance as to how employers should respond when an employee asks for an accommodation based on a religious belief. It’s a unanimous Supreme Court ruling issued on June 29, 2023. So let’s see what we can learn from this case.

Mr. Groff was a postal worker who wanted to have Sundays off due to his observance of the Sabbath. I know what you are thinking: since when do postal workers work on Sunday? They do when the local USPS has a contract with Amazon for Sunday deliveries. So in the small, rural P.O. where Mr. Groff worked in Indiana, employees were required to occasionally work on Sunday. Groff refused to do so and alleged he was fired for this.

The Court held that Title VII requires employers to “reasonably accommodate” an employee’s religious practices unless doing so would create an “undue hardship on the conduct of the employer’s business.” This is not a new standard, but the Court felt that it needed clarification. Due to a single line from a 1977 SCOTUS case many lower courts had been viewing “undue hardship” as not much of a hardship. In fact, some had concluded that anything more than a “de minimis” burden was an “undue hardship.”

Not anymore. The Court emphasized a few things that principals, superintendents and board members should take into consideration. For example:

1. The fact that some of your employees resent the accommodation afforded to a co-worker is not going to be enough of an “undue hardship.” In this case, for example, some of Mr. Groff’s co-workers complained about him getting Sundays off when they had to work. That might be a burden to the employer. It might even be a “hardship.” But it’s not an “undue hardship.” Key Quote:

An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.”

2. You have to be creative in responding to a request for accommodation. Key Quote:

Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

3. The size of your district matters. The Court notes that all relevant factors have to be considered “including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.”

In many of these cases it comes down to money. How much will it cost the employer to accommodate the request? Another major factor is the impact on seniority rights protected by a collective bargaining agreement. In public schools, however, there is another critical factor. Does the granting of the accommodation negatively impact students? In at least one case involving preferred pronouns, this was a critical factor. We told you about the 7th Circuit’s decision on this issue on May 4, 2023. It’s Kluge v. Brownsburg Community School Corporation, decided by the 7th Circuit on April 7, 2023. It’s cited at 64 F.4th 861.

DAWG BONE: EMPLOYEE REQUESTS RELIGIOUS ACCOMMODATION? CONSIDER IT CAREFULLY, CREATIVELY, AND WITH LEGAL REVIEW.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

In a 6-3 decision the Supreme Court shot down a part of the admissions process at Harvard and the University of North Carolina because it factored a student’s race into the decision. This ruling will have a major impact on higher education, particularly in schools that are highly selective about admissions. But what about our K-12 schools?

Board members and superintendents in some of our larger districts will need to consider the SCOTUS ruling as they make decisions about attendance zones and admission to magnet or “choice” schools. If there is an effort to ensure a mix of students that roughly matches the demographics of the district, it will have to be done without overtly factoring in race. For a good example of how to do this, consider the 4th Circuit’s decision in Coalition for TJ v. Fairfax County School Board.

Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia is a highly selective and nationally recognized school. It’s tough to get in. A group of Asian American students and parents (The Coalition for TJ) sued the school board alleging that the board’s newly adopted admissions policy discriminated on the basis of race, disfavoring Asian Americans.

Was this because Asian students were underrepresented at TJ? Hardly. In 2019, 71.5% of the students at TJ were Asian American even though that group comprised just 19.5% of students in the district. After the board tinkered with the admissions process the number of Asian American students dropped to 54.3%. While this is still a majority of the students at TJ and much higher than the percentage of Asian students in the district, the Coalition alleged that the board was seeking to increase the numbers of African American and Hispanic students at the expense of Asian American students who were better qualified. There were a few statements by board members and others, particularly after the murder of George Floyd, that indicated that racial balancing was the goal. The Coalition argued that the effort to balance by race disproportionately and negatively affected only one group—the Asian American students.

The 4th Circuit ruled that the board’s new admissions criteria did not discriminate on the basis of race. The court noted that the new admissions policy was racially neutral on its face and specifically barred identification of a student’s ethnicity as admissions were considered. Moreover, the new policy produced some positive outcomes. There was a large increase in the number of student applications to TJ and a freshman class that had more girls, more low income students, more English Language learners and representation from more middle schools. In fact, the new freshman class had some students from each of the district’s 28 middle schools. In one previous year there were eight middle schools that got no offers for admission to TJ. The statistics about low income Asian students were particularly noteworthy. With the new admissions policy in place there were 51 low income Asian students who were offered admission to TJ. There had been exactly one in 2020.

The TJ admissions policy is too complicated to explain here. But if you are in a district that chooses students on a selective basis for some of your schools, you and your lawyers will want to study this important decision.

Will the Supreme Court take this one? The 4th Circuit’s decision was issued about a month prior to the SCOTUS bombshell. Very likely the lawyers for the Coalition will ask the 4th Circuit to reconsider in light of the Harvard/UNC decision. My prediction is that the Supremes will steer clear of this issue for awhile, letting the dust settle, so to speak. I doubt they will take up the case. If they do, I suspect they will affirm the 4th Circuit’s decision. I expect that the courts will favor a school district’s efforts to attract a wider range of students into its highly selective programs, as long as it is not overtly seeking particular quotas of students by race. We shall see.

It's Coalition for TJ v. Fairfax County School Board, decided by the 4th Circuit on May 23, 2023. It’s published at 68 F.4th 864.

DAWG BONE: LOOKS LIKE PRACTICALLY EVERY STATE’S ATTORNEY GENERAL’S OFFICE WEIGHED IN ON THIS CASE. INCLUDING TEXAS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: accommodating employees with religious beliefs…

On April 3, 2023, the Daily Dawg told you about Perez v. Sturgis Public Schools, 143 S.Ct. 859, a Supreme Court ruling that upended our understanding of how suits under IDEA mesh with suits under other statutes, such as Section 504 or the ADA. SCOTUS held that plaintiffs can pursue claims under ADA and 504 without exhausting IDEA administrative remedies under IDEA if they are seeking remedies you can’t get under IDEA. Remedies like compensatory damages for getting hit by a trash can.

Nidia Heston alleges that this is what happened to her son many years ago. She sued Austin ISD alleging that the person the district hired to help her son instead verbally harassed him and hit him with a trash can. She settled any claims she might have under IDEA and then pursued recourse pursuant to the ADA, Section 504 and Section 1983. In 2018 the court dismissed these claims because she had not exhausted her administrative remedies under IDEA. She took this to the 5th Circuit and got tossed out there too. That was in 2020 and reflected the law as it stood then.

Ms. Heston started up again with basically the same suit in 2022, and again got tossed out of court for trying to “relitigate the same issues as in the first case.”

Then the Supreme Court changed everything.

That SCOTUS decision in the Sturgis case gave new life to Ms. Heston’s efforts. Based on the Supreme Court’s ruling, the 5th Circuit revived Ms. Heston’s case and sent it back to the district court for further action. It’s Heston v. Austin ISD, decided by the 5th Circuit on June 22, 2023, and it’s a good example of how Supreme Court rulings change things.

DAWG BONE: SHE STILL FACES A HIGH BURDEN OF PROOF.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: affirmative action and SCOTUS….

Texas teachers have statutory protection when they use physical force on students. Section 22.0512 of the Texas Education Code gives teachers protection from disciplinary action based on the use of force, as long as the force was “reasonable.” Of course that’s a standard that depends on the context of the situation. In the Toolbox training we talk about the need to use physical restraint on students when there is a genuine emergency. But what if there is no emergency? What if the students are very young, have special needs, and are nonverbal? How do you suppose that’s going to come out?

I’ll just cut to the Key Quote from the Commissioner’s decision:

…it is highly relevant that Petitioner’s students were special needs students who ranged from three to six years old and were acclimating to a new school environment. Most were nonverbal and thus unable to verbally report mistreatment or injuries to parents or other care providers. In the videos, the students against whom Petitioner used physical force were often sitting alone on the floor, sitting at desks, or napping and were not creating a risk of harm to themselves or other, influencing other students, or otherwise engaging in conduct requiring immediate transportation or intervention. Moreover, it is degrading for students to be lifted, pulled, or carried by their shirts; pushed out of chairs; and pulled or yanked by their arms. These actions risked injuring students and were noncompliant with Petitioner’s policies and training, as well as state law and ethical standards.

The teacher’s contract was nonrenewed by the board, and the Commissioner affirmed that decision. It’s Padilla v. Alice ISD, Docket No. 038-R1-05-2023, decided by the Commissioner on June 30, 2023. I’m pleased to let you know that WG lawyers Katie Payne (San Antonio) and Kacey Villafuerte (Rio Grande Valley) handled this one.

DAWG BONE: PHYSICAL FORCE IS PROTECTED ONLY IF IT WAS REASONABLE.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: SCOTUS decisions have consequences….

On February 6, 2023, the independent hearing examiner recommended that Mr. Cortinas’s employment be terminated. On February 22, 2023, the school board voted to accept that recommendation and terminate the man’s employment as an administrator with the district. Mr. Cortinas filed an appeal with T.E.A. on March 23, 2023.

Too late. The Commissioner dismissed the appeal because it was untimely. You have 20 days to appeal that kind of decision and the 20 days expired on March 14th.

The argument in the case was over when those 20 days began. Strange but true: the rules are different for nonrenrewals vs. terminations. In the case of a nonrenewal the board is required to give written notice of its decision to the teacher, and the 20 days does not start until written notice is delivered. On a termination, however, the 20 days begins when the board “announces” its decision. This typically happens when the board takes its vote to terminate in open session. That’s what happened here.

It's Cortinas v. Manor ISD, Docket No. 030-R2-03-2023, decided by the Commissioner on April 26, 2023. I’m pleased to let you know that Christine Badillo and David Holmes from our firm handled this one for the district.

DAWG BONE: IN A TERMINATION CASE, THE 20 DAYS STARTS WHEN THE BOARD ANNOUNCES THE DECISION.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!

We’ll keep it brief for this sweltering Friday in July. If you get fired by an ESC, don’t complain to T.E.A. about it. The Commissioner said it in 1997 and repeated it this year: he has no jurisdiction over complaints about the ESCs.

It’s Reyna v. Region One Education Service Center, Docket No. 029-R2-03-2023, decided by Commissioner Morath on April 24, 2023.

DAWG BONE: YOU CAN TAKE YOUR CASE TO COURT, BUT NOT TO T.E.A.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

It’s no surprise to see the ACLU taking a strong stance against SB 763. This is the new law that authorizes public schools to employ members of the clergy as “chaplains” for the students. Here are the key features of this law, now located at Texas Education Code 23.001, which goes into effect with the start of the school year.

1. It authorizes schools to employ, or accept as volunteers, “a chaplain to provide support, services, and programs for students as assigned by the board of trustees…or the governing body of the school.”
2. Chaplains need not be certified by SBEC, but they are subject to criminal history checks and cannot have a record as a registered sex offender.
3. Funding will come from the School Safety Allotment, as chaplains are added to the list of people who can provide mental health support to students.
4. The board, or the “governing body” of an open enrollment charter school, must take “a record vote” on the adoption of a policy about this issue not later than six months after the effective date of the new law. That should be around the 1st of March, 2024.

The ACLU minces no words. They view this law as unconstitutional from the get-go, and promise to “closely monitor” how the law is implemented and to “take any action that is necessary and appropriate to protect the rights of Texas children and their parents, who practice a wide array of faiths or none at all.”

The bill puts your school board members on the spot by requiring a “record vote” on the adoption of a policy about this. Public comment prior to that vote will be interesting! Moreover, public comment and board member remarks will be cited in litigation. If it looks like the district is using this law as a means of providing religious training or instruction to students, you can expect to hear from the ACLU.

DAWG BONE: THE DICTIONARY DEFINES “CHAPLAIN” AS A MEMBER OF THE CLERGY.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: the ESC fired me!

Our special education law, IDEA, has a broad definition of the term “parent.” Just how broad? The 3rd Circuit has determined that a student’s adult cousin qualifies as “parent” under IDEA.

The student had been living with her adult cousin for several years, and the school district treated the cousin as the student’s parent. The cousin gave consent for special education testing, successfully requested an independent evaluation, and was invited to meetings to consider a 504 plan. But when the cousin requested a due process hearing the school district threw up a roadblock. “You can’t do that! You are not the ‘parent’!”

The cousin responded to that with: “Baloney! You’ve been treating me as the parent for years. Why am I all of a sudden not the parent?” In legalese this argument is known as estoppel. The cousin argued that the school’s consistent acknowledgement of her as “parent” of the student “estopped” them from denying it.

That sounds like a pretty good argument, but that’s not what the court based its decision on. The court simply noted this part of the IDEA’s definition of “parent”:

An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives…. 20 U.S.C. 1401(23)(c).

There is another part of IDEA’s definition of “parent” that creates a hierarchy among the various people who may qualify as a “parent” but that comes up only if the parties are fighting over it. This student had a biological father in the picture, and a grandmother who had a court order giving her custody. If either of them had asserted the right to act as the “parent” their claim would have outranked the cousin. But neither of them did, and in fact, both of them supported the cousin’s effort to act as the “parent.”

It's Q.T. v. Pottsgrove School District, decided by the 3rd Circuit on June 14, 2023. It will be published in the Federal Reporter, but for now can be found at 2023 WL 3987851.

DAWG BONE: LOTS OF PEOPLE CAN QUALIFY AS A “PARENT” UNDER IDEA.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: ACLU weighs in on school chaplains

What do you do when faced with a student’s chronic truancy? This being Toolbox Tuesday, the first thing I would mention is to think about the possibility that the absences may be connected to a disability. There have been a few court cases over the past year that have taken districts to task for the failure to consider that possibility. Often this occurs when a private provider has identified a physical or mental impairment and the school is aware of it, but has not suggested special education testing. That sequence of events can lead to a Child Find complaint.

With truancy, whether the student is in your special education program or not, the first step should always involve Truancy Prevention Measures. Stronger action should follow only when the TPMs are not effective. One of the stronger methods available to a school is to file charges against the parent for contributing to the student’s non-attendance.

HB 3917, which takes effect on September 1, authorizes schools and parents to enter an agreement whereby the parent would participate in “counseling, training, or another program as designated by the school district.” If the parent fulfills the requirements of the training, the court would be required to dismiss the complaint.

We will eventually get rules, materials, and forms from T.E.A. implementing this law. School officials would be wise to make sure that the judges you deal with on truancy cases are aware of this.

DAWG BONE: NOTICE: THE SCHOOL GETS TO DESIGNATE THE “COUNSELING, TRAINING, OR ANOTHER PROGRAM.”

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: can my cousin be my parent?

At home on a Friday night, H.K. set up a fake Instagram account that appeared to belong to his biology teacher. The account was, at first, “benign” according to the court. But when H.K. told his two buddies about it as they played online games late at night, things escalated. H.K. gave his friends access to the account and they posted pictures and words that were vulgar, threatening, sexually inappropriate, and harassing. Moreover, they targeted an English teacher, a coach, and a student along with the biology teacher. The court’s opinion never tells us what happened to the other two students, but here’s what we know about H.K.’s involvement:

He set up the fake account. He gave his friends access to it. He monitored it and knew what they were posting. He joked with his friends about it and chose not to delete the posts when he could have. He accepted requests from 18 others to follow the account.

This did not last long. By Monday morning the biology teacher was aware of the account. He asked the principal for help. The principal launched an investigation and quickly identified the three boys who were responsible. Meanwhile, H.K. deleted the entire account during his lunch break.

The principal immediately suspended H.K. for five days, but after completing her investigation, she recommended expulsion. The superintendent conducted a hearing and chose to go with a lighter penalty—a ten day suspension. Still, that was enough to provoke H.K’s father to sue the district, the superintendent and the principal, claiming that the school was infringing on his son’s First Amendment rights.

Nope. The 6th Circuit had little trouble distinguishing this case from the Case of the Foul-Mouthed Cheerleader decided by the Supreme Court last year. That case (Mahanoy Area School District v. B.L.) involved off-campus F-bombs on Snapchat in a brief teenage temper tantrum. The Foul-Mouthed Cheerleader did not threaten or harass anyone and only made vague accusations of poor judgment by the cheerleading coaches. In contrast, H.K’s fake Instagram account “involves serious or severe harassment of three teachers and a Freeland student.”

What about the fact that H.K. did not actually write or post the more troublesome content? The court put it this way:

Like the First, Fourth, and Ninth Circuits, we hold that when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech. And because H.K. contributed to the harmful speech by creating the Instagram account, granting [the other two boys] access to the account, joking with [the other two] about their posts, and accepting followers, he bears responsibility for the speech related to the Instagram account.

It's Kutchinski v. Freeland Community School District, decided by the 6th Circuit on June 2, 2023. It’s cited at 69 F.4th 350.

DAWG BONE: CAUSED, CONTRIBUTED TO, AFFIRMATIVELY PARTICIPATED IN: REMEMBER THOSE WORDS.

Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.

Tomorrow: Toolbox Tuesday!!