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Important New USED Guidance on School Enrollment Procedures, Title IX, FERPA

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Important New USED Guidance on School Enrollment Procedures, Title IX, FERPA June 11, 2014 * Given the breadth of issues addressed under each topic, we encourage you ... – PowerPoint PPT presentation

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Title: Important New USED Guidance on School Enrollment Procedures, Title IX, FERPA


1
Important New USED Guidance on School Enrollment
Procedures, Title IX, FERPA
June 11, 2014
2
Todays Presenters
  • Maree SneedPartner,Hogan Lovells LLP

Michelle TellockAssociate,Hogan Lovells LLP
3
Todays Agenda
  • School enrollment procedures
  • Title IX/Sexual Violence
  • FERPA/Uninterrupted Scholars Act
  • Any other questions?

4
Ripped from the Headlines
5
Overview School Enrollment Procedures Guidance
Package
  • Joint effort by U.S. Department of Education and
    Department of Justice
  • Released May 8, 2014

A State may not deny access to a basic public
education to any child . . . , whether present
in the United States legally or otherwise.
Denying innocent children access to a public
education . . . imposes a lifetime of hardship
on a discrete class of children not accountable
for their disabling status . . .
Under Federal law, State and local educational
agencies . . . are required to provide all
children with equal access to public education at
the elementary and secondary level regardless
of their or their parents or guardians actual
or perceived citizenship or immigration status.
6
Behind the GuidanceThe Law
  • Title IV of the Civil Rights Act of 1964
  • Prohibits discrimination in public elementary and
    secondary schools based on race, color, or
    national origin, among other factors
  • Title VI of the Civil Rights Act of 1964
  • Prohibits discrimination based on race, color, or
    national origin by recipients of Federal
    financial assistance
  • Plyler v. Doe (U.S. Supreme Court, 1982)
  • Prohibits districts from barring students from
    attending public school on the basis of their own
    citizenship or immigration status or that of
    their parents or guardians

7
Overview School Enrollment Procedures Guidance
Package
  • The Guidance Package includes three resources
  • Dear Colleague Letter (DCL)
  • Replaces the Dear Colleague Letter from May 6,
    2011
  • Questions and Answers for School Districts and
    Parents
  • Fact Sheet, directed at parents

8
Dear Colleague LetterLegal Background
  • The Dear Colleague Letter does not constitute new
    regulations
  • The Dear Colleague Letter does not add
    requirements to applicable law
  • Courts would likely show deference to the
    Departments interpretations and guidance

9
What the DCL saysObservations, in brief
  • Schools cannot bar students from enrolling in
    public schools on the basis of their own
    citizenship or immigration status or that of
    their parents or guardians
  • Schools cannot request information with the
    purpose or result of denying access to public
    schools on the basis of race, color, or national
    origin

10
What the DCL saysObservations, in brief
  • A district may require documentation to prove
    residency but . . .

Guidance Example
A district may require copies of phone and water
bills or lease agreements to establish residency.
While a district may restrict attendance to
district residents, inquiring into students
citizenship or immigration status, or that of
their parents or guardians, would not be relevant
to establishing residency within the district. A
district should review the list of documents that
can be used to establish residency to ensure that
any required documents would not unlawfully bar
or discourage a student who is undocumented or
whose parents are undocumented from enrolling in
or attending school.
Exception Homeless children and youth
11
What the DCL saysObservations, in brief
  • A school may request data about a students race
    and/or ethnicity to comply with Federal or state
    standards, but a parents or guardians refusal
    to comply with these requests cannot lead to a
    denial of a students enrollment or other
    discrimination against the child

12
Should districts refrain from asking for social
security numbers?
  • Guidance Answer
  • The Federal government does not prohibit school
    districts from collecting the SSNs of prospective
    or current students. States and local districts
    must decide, however, whether they have a legally
    permissible reason to collect this information.
    A district cannot deny enrollment to a student if
    he or she chooses not to provide the students
    SSN. A school district that opts to request SSNs
    should make clear in all enrollment and
    registration documents that the provision of the
    childs SSN is voluntary, and that choosing not
    to provide a SSN will not bar a childs
    enrollment.

13
How can my district complywith the Guidance
Package?
  • Evaluate whether current policies bar, chill, or
    discourage school participation
  • Evaluate reasons for asking for SSNs or birth
    certificates
  • Evaluate reasons for asking for race and
    ethnicity data
  • Analyze enrollment data to see if there are drops
    in enrollment that might indicate barriers to
    attendance

14
What additional proactive steps can my district
take?
  • Proactively notify parents of their rights to
    send children to public school
  • Conduct outreach to inform parents that all
    students who are residents in the district are
    welcome
  • Provide training to staff on how to avoid
    violating the law in this area

15
Ripped from the Headlines
16
Title IX
  • Title IX of the Education Amendments of 1972
    (Title IX) prohibits discrimination on the
    basis of sex in federally-funded education
    programs and activities
  • All public elementary and secondary schools and
    school districts receiving federal financial
    assistance must comply

17
Title IX and Sexual Violence USED Guidance
  • April 4, 2011 Office for Civil Rights (OCR)
    issued a Dear Colleague Letter on
    student-on-student sexual harassment and sexual
    violence
  • The DCL explained a schools responsibility to
    respond promptly and effectively to sexual
    violence in accordance with Title IX

18
Title IX and Sexual Violence USED Guidance
  • The April 4, 2011 DCL supplemented OCRs Revised
    Sexual Harassment Guidance, issued in 2001 (2011
    Guidance)
  • The DCL and the 2011 Guidance remain in full
    force, but
  • On April 29, 2014, USED offered additional
    guidance in the form of a 46-page QA

19
Title IX and Sexual Violence USED Guidance
  • The new QA is divided into multiple topics,
    including

Retaliation
A schools obligation to respond to sexual
violence
Students protected by Title IX
Title IX procedural requirements
Responsible employees and reporting
Confidentiality and a schools obligation to
respond to sexual violence
Investigations and hearings
Interim measures
Remedies and notice of outcome
Title IX training, education, and prevention
Appeals
Further federal guidance
First Amendment
20
Responding to Sexual Violence
Guidance Example
How does Title IX apply to student-on-student
sexual violence? Under Title IX, federally
funded schools must ensure that students are not
denied or limited in their ability to participate
in or benefit from the schools educational
programs or activities on the basis of sex. A
school violates a students rights under Title IX
when the following conditions are met (1) the
alleged conduct is sufficiently serious to limit
or deny a students ability to participate in or
benefit from the schools educational program,
i.e. creates a hostile environment and (2) the
school, upon notice, fails to take prompt and
effective steps reasonably calculated to end the
sexual violence, eliminate the hostile
environment, prevent its recurrence, and, as
appropriate, remedy its effects.
21
Responding to Sexual Violence
Guidance Example
Does Title IX cover employee-on-student sexual
violence, such as sexual abuse of children? Yes,
Title IX protects students from . . . sexual
harassment carried out by school employees.
Sexual harassment by school employees can include
unwelcome sexual advances requests for sexual
favors and other verbal, nonverbal, or physical
conduct of a sexual nature, including but not
limited to sexual activity. . . . A school
should take steps to protect its students from
sexual abuse by its employees. It is therefore
imperative for a school to develop policies
prohibiting inappropriate conduct by school
personnel and procedures for identifying and
responding to such conduct.
22
Students Protected by Title IX
Guidance Example
Does Title IX protect all students from sexual
violence? Yes. Title IX protects all students
at recipient institutions from sex
discrimination, including sexual violence. Any
student can experience sexual violence from
elementary to professional school students male
and female students straight, gay, lesbian,
bisexual and transgender students part-time and
full-time students students with and without
disabilities and students of different races
and national origins.
23
Students Protected by Title IX Students with
disabilities
Guidance Example
What issues may arise with respect to students
with disabilities who experience sexual violence?
When students with disabilities experience
sexual violence, federal civil rights laws other
than Title IX may also be relevant to a schools
responsibility to investigate and address such
incidents. Certain students require additional
assistance and support. For example, students
with intellectual disabilities may need
additional help in learning about sexual
violence, including a schools sexual violence
education and prevention programs, what
constitutes sexual violence and how students can
report incidents of sexual violence. In addition,
students with disabilities who experience sexual
violence may require additional services and
supports, including psychological services and
counseling services. . . .
24
Students Protected by Title IX Students with
disabilities
. . . continued
A student who has not been previously determined
to have a disability may, as a result of
experiencing sexual violence, develop a mental
health-related disability that could cause the
student to need special education and related
services. At the elementary and secondary
education level, this may trigger a schools
child find obligations under IDEA and the
evaluation and placement requirements under
Section 504. A school must also ensure that any
school reporting forms, information, or training
about sexual violence be provided in a manner
that is accessible to students and employees with
disabilities, for example, by providing
electronically-accessible versions of paper forms
to individuals with print disabilities, or by
providing a sign language interpreter to a deaf
individual attending a training.
25
Confidentiality and a SchoolsObligation to
Respond
How should a school respond to a students
request that his or her name not be disclosed to
the alleged perpetrator or that no investigation
or disciplinary action be pursued to address the
alleged sexual violence? OCR strongly supports
a students interest in confidentiality in cases
involving sexual violence. There are situations
in which a school must override a students
request for confidentiality in order to meet its
Title IX obligations however, these instances
will be limited and the information should only
be shared with individuals who are responsible
for handling the schools response to incidents
of sexual violence. . . . In the case of minors,
state mandatory reporting laws may require
disclosure, but can generally be followed without
disclosing information to school personnel who
are not responsible for handling the schools
response to incidents of sexual violence. . . .
Regardless of whether a student complainant
requests confidentiality, a school must take
steps to protect the complainant as necessary,
including taking interim measures before the
final outcome of an investigation.
26
Title IX and Sexual Violence Stay Tuned
  • The White House Task Force to Protect Students
    from Sexual Assault issued its first report,
    entitled, Not Alone, on April 29, 2014
  • The first report focuses on sexual assault at
    postsecondary institutions, but the Task Force
    has said it will consider how its
    recommendations apply to public elementary and
    secondary schools"

27
Uninterrupted Scholars Act (USA)
  • Signed into law by President Obama on January 14,
    2013 effective immediately
  • Amends the Family Educational Rights and Privacy
    Act (FERPA) in two ways
  • Parts B and C of the Individuals with
    Disabilities Education Act (IDEA) incorporate
    the same protections of, and are consistent with,
    FERPA
  • USED has not yet amended relevant FERPA or IDEA
    regulations
  • USED guidance May 27, 2014

28
Ripped from the Headlines
29
What does FERPA require?
  • FERPA protects personally identifiable
    information (PII) from students educational
    records from unauthorized disclosure
  • A school cannot disclose PII from education
    records unless
  • Written permission from parents or eligible (18)
    student OR
  • Disclosure under an exception

30
USA The FERPA Exceptions
New Exception Permits educational agencies and
institutions to disclose a students educational
records, without parental consent, to a
caseworker or other representative of a State or
local child welfare agency or tribal organization
authorized to access a students case plan when
such agency or organization is legally
responsible, in accordance with State or tribal
law, for the care and protection of the student.
Amended Exception Permits educational agencies
and institutions to disclose a students
education records pursuant to a judicial order
without requiring additional notice to the parent
by the educational agency or institution, in
specified types of judicial proceedings (i.e.,
child abuse and neglect dependency matters) in
which a parent is involved.
31
Applying the Exceptions
Guidance Example
A high school receives a request from the local
CWA for all of the education records relating to
certain students who are in foster care
placement. Does the high school have to turn over
all of the information, or just the information
that the high school thinks the CWA needs to see?
FERPA doesnt require the high school to
disclose any education records to the CWA.
However, the USA amended FERPA to permit the high
school to turn over all or part of the education
records for the students who are in foster care
placement. The CWA may use these records to
address the students education needs. The
Department strongly encourages schools and LEAs
to work cooperatively with CWAs and tribal
organizations to ensure that the education needs
of students in foster care placement are
adequately addressed.
32
Applying the Exceptions
Guidance Example
The CWA asks the local school to provide the
welfare agency with the education records on
children who are not in foster care placement.
Does the USA allow the school to share education
records with the CWA for this purpose? No. The
USA would permit the school to disclose education
records . . . only to agency caseworkers or
other representatives of the CWA who have the
right to access the case plan for children in
out-of-home placement (i.e., foster care
placement). The USA exception would not apply to
those children who are not in foster care
placement. Thus, FERPA would not permit the
school to disclose education records to the CWA
on students who remain at home and who are not in
foster care placement unless there is written
consent of the parent or eligible student. Thus,
FERPA would not permit the school to disclose
education records to the CWA pertaining to those
students receiving in-home services . . .
33
What does FERPA require?
  • If a school discloses education records under
    these exceptions, the school must maintain a
    record of each request and each disclosure of PII
    from the education records of each student. The
    record must include
  • The parties who have requested or received PII
    from the education records, and
  • The legitimate interests the parties had in
    requesting or obtaining the information

34
Questions Answers
35
Questions/Concerns
  • If you seek more information on USED technical
    assistance, or would like a copy of this
    presentation, please email Sasha Pudelski
    (spudelski_at_aasa.org).
  • If you wish to receive legal council specific to
    your districts needs, please email (Maree Sneed
    maree.sneed_at_hoganlovells.com) or Michelle Tellock
    (michelle.tellock_at_hoganlovells.com).

36
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