Tag Archives: Title IX

Dawg Bones

USING A STUDENT AS “BAIT”?  NOT A GOOD IDEA

There is a lawsuit brewing in Alabama in which the plaintiff alleges that an 8th grade girl was used as “bait” so that a boy could be “caught in the act” of sexual harassment.  The plan was for teachers to intervene before the girl was harmed.  But according to the suit, the sting operation did not go well.  The boy took the “bait,” but the rescue squad arrived at the scene of the crime in the boys’ bathroom too late.  Medical evidence confirmed the girls’ story—she had been raped.

The suit is against the district, the principal, two assistant principals and a teacher’s aide.  The district court dismissed most of the lawsuit for reasons that are too complicated to explain here.  But suffice it to say that regardless of how the legalities are resolved, this was a colossally bad idea in the first place.

Two points are worth emphasizing.  First, the tragic miscalculation here sprung from the notion that the school could not address the boy’s reported sexual advances until he was “caught in the act.” That’s just not true. What is true is that punitive disciplinary action could not be taken without some evidence of wrongdoing. But a school district should have other tools in the toolbox to address sexual harassment.  Where was the counseling? Where was the proactive effort to teach appropriate conduct between boys and girls?  Where was the parent involvement?

Second, there is no way that students should be allowed to be involved in “sting” operations like this.  Schools need to enforce their policies about sexual harassment without putting kids at risk.

The case is on appeal to the 11th Circuit, and it has drawn considerable interest from advocacy groups and the Department of Education.  The case is Hill v. Madison County School Board, 957 F.Supp.2d 1320 (N.D. Ala. 2013).

DAWG BONE: LET’S NOT BE USING STUDENTS IN A “STING” OPERATION.

 

 

Dawg Bones

TRANSGENDER STUDENTS AND THE BATHROOM

You have a transgender student in your school.  What bathroom do they use?  There is a lot of legal talk about this, but no clear, across the board answer. Keep in mind that part of the problem is that the term “transgender” is being used to describe a wide array of students, ranging from those who believe that their gender identity does not match their biology, to those who have had surgery.

The Department of Education’s Office of Civil Rights recently said that a transgender student is “a student who consistently and uniformly asserts a gender identity different from the student’s assigned sex [at birth], or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student’s core identity.”  Districts should keep in mind that OCR has stated that transgender students are protected from discrimination under Title IX and that protection might sometimes mean that schools will need to consider permitting such students to use the bathroom that matches the gender with which the student identifies rather than the student’s biological sex.

So this is an area where the wisest thing we can say is to talk to the parents, get more information, and call your lawyer.

You are likely to face criticism whatever you decide. In fact, you might face litigation whatever you decide.  At least two courts have said that a school discriminated by not allowing a transgender student to use the bathroom that matched their gender identity.  OCR said the same in a California investigation.  But now there is at least one suit we have learned about that claims that a school is violating the law by allowing a student born male to use the girls’ restroom.  This was reported by the Louisville Courier Journal in a story about Atherton High School in Jefferson County. The suit was filed by a group called the Alliance Defending Freedom.  This group recently sent an email to school superintendents across the country confidently proclaiming that there is no legal duty to allow a transgender student to use a bathroom other than the one that matches their biological sex.  On top of that, the group enclosed a policy to that effect, and offered to defend any legal challenge you get at no cost.  That may sound like an attractive offer, but remember, this is a group that is advocating for their view on this matter. We think your legal advice should come from a lawyer who is not advocating any particular point of view, but only interested in serving you as a client.

This is a classic example of a situation where dispassionate, objective legal advice is needed.  Maybe 10 years from now the law on this subject will be crystal clear, but that is not the case right now.  Get information. Talk to the parents and student.  Assess all your options. Call your lawyer.

DAWG BONE: TRANSGENDER STUDENTS AND THE BATHROOM: NO EASY ANSWERS