School Law

In Missouri NEA et al. v. Missouri Department of Labor and Industrial Relations et al., Case No. 18SL-CC03310 (“Litigation”) the NEA and six other labor organizations (Plaintiffs) sued the Missouri Department of Labor and Industrial Relations (Department), the State Board of Mediation (“SBM”), Ferguson-Florissant and Hazelwood School Districts and various other public bodies (“Defendants”). On March 8, 2019, the Circuit Court of St. Louis County granted Plaintiffs’ request for a preliminary injunction preventing the Defendants from “…administering or enforcing any provision of HB 1413” (the collective bargaining law) that was effective August 28, 2018. Please click here to review the Order.

The Court held that Plaintiffs were likely to succeed on their claims that the law is unconstitutional because: (1) it violates Plaintiffs’ rights to organize and bargain collectively under Article I, Section 29 of the Missouri Constitution; (2) it violates Plaintiffs’ rights to equal protection under the law under Article I, Section 2 of the Missouri Constitution; and, (3) it violates Plaintiffs’ free speech rights under Article I, Sections 8 and 9 of the Missouri Constitution. Technically, the ruling is not binding on any school district that is not a party to the Litigation.

The Order does not set a date for a hearing on a permanent injunction. The parties may agree that the preliminary injunction should be made permanent so that the case can be appealed to the Supreme Court of Missouri.

Unless the Circuit Court changes its ruling or the Missouri Supreme Court reverses, modifies or sets aside this Order, HB 1413 likely should not be enforced by the Department or the SBM. Pending election petitions pursuant to that law should not be processed by the SBM. SBM has stated that elections will be suspended or postponed until the courts resolve the dispute. Our view is that the SBM likely should not certify results of elections held but not certified because it technically has been enjoined from doing so.

Some may question whether the Districts who were not parties to the Litigation can bargain with organizations that have not been certified, and if so, should those Districts insist on the substantive labor agreement/MOU provisions required by HB 1413. An NEA attorney informed us that NEA’s position is that HB 1413 is suspended in its entirety and that Districts should bargain under the prior law. The Missouri Attorney General’s office may also take that position. Without predicting how the Supreme Court may rule if the case is appealed, as a practical matter, we believe that Districts probably should bargain with organizations as they have in the past. Districts arguably could insist on the HB 1413 substantive provisions on the ground that HB 1413 still applies to them. We will be pleased to discuss bargaining strategies related to those provisions upon request.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school lawyers if you have any questions.  

This update was prepared by Charles S. Elbert and Erin M. Leach.

A pair of cases decided by the Supreme Court of Missouri yesterday held that two plaintiffs — a gay employee and a transgender student — both stated sufficient allegations to proceed with a lawsuit under the Missouri Human Rights Act (“MHRA”).

Each of these cases was focused on the legal requirements for proceeding with a lawsuit, so there was little discussion of specific facts relating to either plaintiff’s claim. In Lampley v. Missouri Commission on Human Rights, SC96828 (Mo. banc February 26, 2019), the plaintiff was a gay male who alleged that he was harassed by his supervisor. The Court held, by a 5-2 vote, that plaintiff’s claim of sex discrimination under the MHRA could proceed. The Court split on the rationale for its decision. Three judges adopted the “sex stereotyping” theory that has prevailed in federal courts applying federal anti-discrimination laws, under which plaintiffs may pursue a claim that they were subject to sex discrimination by their employer because they did not conform to generally-held sexual stereotypes. Two other judges explained the decision without adopting that theory, simply holding that plaintiff could proceed with a claim that he was treated “differently … because of [his] sex.”

In R.M.A. ex rel. Appleberry v. Blue Springs R-IV School District et al. No. SC96683 (Mo. banc February 26, 2019), the issue was whether plaintiff student could use a school bathroom consistent with his stated gender identity. The Court held, by the same 5-2 vote, that the student’s allegations that his “legal sex is male” and that he was discriminated against in the use of a public accommodation based on that legal sex, were sufficient to pursue a claim.

Though the specific rationales stated in each of these cases are not sweeping, we believe these cases’ practical effect is that employees and other plaintiffs who are transgender, gay or otherwise gender non-conforming will often be able to state an MHRA sex discrimination claim. This does not mean that such plaintiffs will necessarily prevail in their claims — that will depend on the facts of each case. But the rulings mean that employers should consider in making employment decisions that such persons likely have rights under the MHRA. Employers should also review and consider updating their policies with respect to gender non-conforming employees, and especially transgender, gay and lesbian employees. In addition, employers who are public entities or maintain public accommodations should review any policies they may have with respect to public restrooms to ensure compliance with the decision in R.M.A. 

The R.M.A. decision is of particular importance to school districts.  Previous transgender restroom cases in the school context had been brought under federal law (primarily Title IX, Title VII, or the federal constitution) but R.M.A. opens a state law cause of action as well, that could be available regardless of how the federal courts interpret those federal provisions.  Consequently, there is an additional, risky avenue by which school districts may be sued. 

Another important holding of the R.M.A. case is that school districts and their boards may be held responsible for public accommodation discrimination, allowing claims to be brought against more entities for this broadened category of discrimination.  In this case the plaintiff was a student, but the holding means it could be a parent or other individual as well.  

In light of the R.M.A. decision, school districts should review their policies and practices regarding transgender students, particularly with regard to access to restrooms, locker rooms, and other areas of public accommodation.  R.M.A. substantially increases the risk of litigation for school districts that do not allow use of facilities consistent with students’ gender identities.  

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school lawyers if you have any questions.  

This update was prepared by Charles S. Elbert, Robert A. Useted, Kevin A. Sullivan, D. Leo Human, and Erin M. Leach.

The United States Supreme Court handed down its decision on March 22, 2017 in Endrew F. v. Douglas County School District, No. 15-827 (3/22/2017), regarding the standard for determining whether a child has been offered a Free Appropriate Public Education ("FAPE").

In the unanimous (8-0) decision, the Court held that each Individualized Education Program (“IEP”) must be “reasonable” and must be “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”  This holding clarifies, but does not overrule, the standard previously adopted in Board of Ed. of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), that the IEP must be “reasonably calculated to enable the child to receive educational benefits.” The school in Endrew had argued that Rowley referred to “some educational benefit” and therefore that the benefits provided must be “merely more than de minimis”; however, the Supreme Court expressly rejected this much-lower standard.

The Endrew Court made clear that there is no bright-line test.  For example, a child who is making passing marks and advancing from grade to grade is not necessarily being given a FAPE.  Similarly, a child who is not making passing marks and advancing from grade to grade is not necessarily being denied a FAPE, because that is not a reasonable expectation for every child. Instead, the IEP must be “appropriately ambitious in light of [the child’s] circumstances.”

Finally, the Court stated that the fact that its decision does not announce a bright-line rule is not an “invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.”

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Robert A. Useted and Erin M. Leach.

Late on February 22, 2017, the Departments of Education and Justice (“Departments”) published a Dear Colleague Letter (“DCL”) withdrawing guidance which had previously been handed down by the Obama administration regarding public schools' treatment of transgender students.  The previous guidance came in the form of two other DCLs, dated January 7, 2015 and May 13, 2016, which together contained detailed directives for schools about transgender student issues.  

The most controversial piece of the Obama-era DCLs had attempted to condition receipt of federal funds on school districts allowing transgender students to use the restroom corresponding with their gender identity rather than with their sex assigned at birth.  That interpretation of the law has been the subject of several lawsuits in the last year, including G.G. v. Gloucester County School Board, in which the 4th Circuit held that according to Title IX and the federal government’s interpretation contained in the DCLs, a transgender male high school student (Gavin Grimm) was likely to prevail in his request to use the boys’ restroom at school.  The 4th Circuit therefore entered a preliminary injunction requiring the Gloucester district to allow Gavin to use the male restroom.  That decision was stayed by the United States Supreme Court last fall.

In the fall of 2016, another federal court reached the opposite conclusion in Texas v. US, and held that the 2016 DCL appeared to be an improper exercise of executive authority which had not gone through the proper process for making a new rule.  The court in Texas v. US issued an injunction nationwide, prohibiting the federal government from enforcing their DCLs as to restroom access.  Several other lawsuits are currently pending around the country with respect to the restroom issue in schools.   

G.G. is set to be heard by the Supreme Court on March 28th and Texas v. US is on appeal to the 5th Circuit.  However, with the withdrawal, these two cases lose much of their import, because parties in each were expressly relying on the 2015 and/or 2016 DCLs.  Either or both cases could go away on procedural grounds.  However, others of the pending transgender cases advanced other arguments to support restroom access, including Equal Protection under the U.S. and state constitutions.  That argument has not been affected by the Trump administration’s DCL, and so the issue could reach the Supreme Court again as those cases work their way through the judicial system.

Other lesser known provisions of the 2015 and 2016 DCLs directed schools on topics such as identification documents, names, pronouns, sex-segregated activities, privacy of transgender status, and discrimination/harassment based on transgender status.

The February 22nd DCL is only two pages long (you can read the whole document here) and does not address the above issues with any detail.  Instead, it simply withdraws the earlier guidance, stating that the Departments will no longer rely on any of the views expressed in the previous DCLs.  The stated purpose of the withdrawal is for the Departments to “further and more completely consider the legal issues involved” and also that “there must be due regard for the primary role of the States and local school districts in establishing educational policy.”   

This new DCL does make clear that the withdrawal does not take away transgender students’ protection from discrimination, bullying, or harassment, and promises that the Office for Civil Rights will continue to hear all claims of discrimination.  However, aside from that guaranteed protection, the withdrawal of previous guidance will likely create uncertainty for school administrators in the states which do not have state law on the topic (Missouri does not currently have relevant state law, though a bill is pending in the General Assembly which could resolve the restroom issue, at least temporarily). 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our school law attorneys if you have any questions regarding how to structure or modify your school or district's policies and/or practices given this change in the legal landscape.

This update was prepared by Robert A. Useted and Erin M. Leach.

On September 14, 2016, the Missouri legislature overrode the governor’s veto and passed House Bill No. 1432, a copy of which you can find here.  Under that bill, which was effective October 14, a school district employee, other than a probationary teacher, who is put on paid administrative leave must be given a hearing within sixty (60) days from the date the employee was placed on such leave if the employee is not removed from administrative leave within thirty (30) days after being placed on such leave.  Although the hearing can be continued for good cause, it cannot be continued for more than 180 days from leave commencement.  Further, within thirty (30) days of placing an employee on administrative leave any school district must inform the Board of Education of the reason or reason(s) for the employee’s placement on administrative leave.  Finally, the District must provide a writing to the employee the “general reason or reasons” for the leave.

These new requirements do not apply under circumstances where the employee’s misconduct is the subject of certain law enforcement investigations.

The practical effect of this statute is that school districts will be required to act quickly in connection with any investigation and decision after an employee (other than a probationary teacher) is placed on administrative leave.  Therefore, Districts may want to fully develop the facts before placing an employee on administrative leave if the employee is not creating a safety or health issue that requires immediate action.  Districts must carefully draft the “general reason or reasons” why the employee is placed on administrative leave because these reasons may bind the District in subsequent, such as employment discrimination, proceedings.  The statute likely will prevent Districts and the employee from agreeing to a long leave in lieu of a hearing on termination.  Therefore, Districts likely should promptly file charges to terminate permanent contracts and set the hearing within sixty (60) days of the date that the permanent teacher is placed on administrative leave.  In addition, employees who may not otherwise be entitled to hearings, such as classified employees, now are entitled to hearings under this statute.

Because the statute provides that a hearing “shall” occur, the parties may not be able to waive the hearing.  However, the statute does not describe the nature, extent or procedures of the hearing.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.