The Court on Monday denied the parents’ petition for review in Parents for Privacy v. Barr, 120 LRP 5579, 949 F.3d 1210 (9th Cir. 2020), cert. denied. In declining to hear the case, the Court effectively preserved the 9th U.S. Circuit Court of Appeals’ ruling at 120 LRP 5579 that the district’s policy did not violate 14th Amendment privacy rights or Title IX.

Scope of privacy rights

The case stemmed from a transgender student’s request to use the boys’ bathroom and locker room at his high school. After the district adopted a student safety plan that allowed the boy to use the facilities that matched his gender identity, the parents of several cisgender students sued to prevent the district from enforcing the plan. The District Court dismissed the parents’ complaint, and the parents appealed.

The 9th Circuit noted that it had recognized a privacy right against bodily exposure in other cases. However, the three-judge panel explained that those cases involved law enforcement and correctional officers viewing, photographing, or touching individuals of the opposite sex against their will.

In this case, the panel observed, the parents did not allege that transgender students were taking nude photographs of their children or otherwise taking purposeful steps to invade their children’s privacy without a legitimate reason. The 9th Circuit agreed with the District Court that the 14th Amendment did not give cisgender teenagers a constitutional right not to share facilities with transgender students.

“This conclusion is supported by the fact that the Student Safety Plan provides alternative options and privacy protections to those who do not want to share facilities with a transgender student, even though those alternative options admittedly appear inferior and less convenient,” U.S. Circuit Judge A. Wallace Tashima wrote.

No duty to segregate facilities

As for the parents’ claim that the district’s policy violated Title IX by turning locker rooms, showers and multi-use restrooms into a “sexually harassing environment,” the 9th Circuit acknowledged that Title IX allows districts to segregate restrooms, locker rooms and showers by sex. However, the panel pointed out that nothing in the statute requires a district to do so.

“Nowhere does the statute explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity,” Judge Tashima wrote. Furthermore, the panel observed, a transgender student’s use of a restroom or locker room for its intended purpose did not amount to severe and pervasive harassment on the basis of sex.

Because the District Court dismissed the parents’ complaint “with prejudice,” the parents cannot refile their claims against the Oregon district.

Amy E. Slater covers education legal issues for LRP Publications, publisher of 91¿´Æ¬.

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In a 54-page decision issued on Friday, the U.S. District Court, Southern District of New York dismissed the parents’ IDEA, Section 504, A91¿´Æ¬, and 14th Amendment claims without prejudice, meaning that the parents are free to replead the allegations in their complaint down the road. The court based its decision on its inability to hear claims against districts outside of New York and the parents’ failure to exhaust their administrative remedies.

Related: Current suits, resolved cases related to pandemic-related school closures.

The case is the largest FAPE action arising out of the COVID-19 pandemic to date. Most putative class actions based on the extended school closures have sought relief on behalf of students with disabilities in a specific state or district. The parents in J.T. alleged in their complaint that they were suing on behalf of every student in the United States who receives services under the IDEA or Section 504.

Chief U.S. District Judge Colleen McMahon, who wrote the opinion dismissing the J.T. case, did not rule out the possibility that smaller groups of students could pursue more targeted class actions against their SEAs or LEAs.

“Whether groups of parents from a single [out-of-state] district can band together to sue that district is not an issue I can or should address today; it is enough that the claims asserted in this action can be brought against the [out-of-state] defendants in [another] forum,” the judge wrote.

Civil RICO claims

One of the more notable aspects of J.T. v. de Blasio was the parents’ claim that the educational agencies violated the Racketeer Influenced and Corrupt Organizations Act by accepting federal funding and failing to provide special education services. Judge McMahon rejected the notion that the nationwide school closures proved the agencies were working together to deny FAPE to students with disabilities. She also questioned the parents’ claim that the districts knowingly accepted federal funding for services they had no intention of providing.

“The utter implausibility of such a contention speaks for itself,” the judge wrote. “No one knew that there was going to be a pandemic; it took the entire world by surprise.”

The judge dismissed the parents’ RICO claim with prejudice, meaning that the parents cannot refile that claim. That dismissal applies to all SEAs and LEAs identified as defendants in the case.

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Amy E. Slater, Esq., covers special education legal issues for LRP Publications

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It’s well established that a district can’t shorten the school day for students with disabilities solely for transportation purposes. For example, a district may not require students in a special day class to board their buses 15 minutes before the end of the school day just so they can avoid crowds in the hallways. See, e.g., Bay Village (OH) City Sch. Dist., 65 IDELR 275 (OCR 2014). However, most of these cases involving shortened school days were decided long before the novel coronavirus forced districts to adopt new transportation safety protocols. This raises the question: How concerned should transportation directors be about making sure students with disabilities don’t end up with shortened school days as a result of modified busing practices?

David Garner, an attorney with Osborn Maledon P.A. in Phoenix, believes transportation directors should be somewhat concerned about this issue. Differences in the length of the school day for students with disabilities and their nondisabled peers can amount to disability discrimination under Section 504.

“That said, if the choice is between health and safety of the student [and] checking a time slot on a timesheet, concerns for safety should take precedence,” Garner says. He observes that staggering arrival and departure times—a practice recommended by the Centers for Disease Control and Prevention—may be the best option for some districts.

Ensure provision of services

Staggered arrival and departure times for students with disabilities might be acceptable in some circumstances, says Laura Anthony, a partner with Bricker & Eckler in Columbus, Ohio. Still, administrators need to be aware of how such an arrangement might affect a student’s right to FAPE. A  district could find itself liable for compensatory education if students with disabilities do not receive instruction or necessary services because of a shortened school day.

“However, if the school is staggering its entire schedule because of social distancing or transportation needs, and the students with disabilities get all of their services, just on a different schedule, this might not open the door to compensatory education,” Anthony says.

Communicate with parents

Garner believes the best way to avoid disputes over transportation services is to communicate clearly and openly with parents. Most people understand the COVID-19 pandemic is forcing people to “think outside the box” and work together to find the best solutions, he notes.

What happens if a district’s efforts to collaborate with the parents of a student with a disability break down? In such instances, Garner says, the district should strive to do what’s best for the student—”even if that may mean drawing slightly outside the lines.”

Amy E. Slater, Esq., covers special education legal issues for LRP Publications, publisher of 91¿´Æ¬.

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Regardless of whether schools open for in-person instruction this fall, or districts opt to continue distance learning, educators will need to understand terminology relating to COVID-19. Familiarize yourself and your staff with the following terms by the start of the SY 2020-21.

1. CARES Act. This is an abbreviation for the Coronavirus Aid, Relief, and Economic Security Act, which was passed by Congress and signed into law in March 2020. It includes provisions that allow for waivers of Elementary and Secondary Education Act accountability requirements and provides $13.5 billion in supplemental funding for K-12 education through the Governor’s Emergency Education Relief Fund and the Elementary and Secondary School Emergency Relief Fund. 91¿´Æ¬istrators can expect to hear about CARES Act, GEER, and ESSER during meetings about budgets and school funding.

2. Contact tracing. This is a disease control measure used by local and state health department personnel to prevent the spread of COVID-19. Public health staff work with infected individuals to help them recall everyone with whom they had close contact with while infectious, then warn those contacts of their potential exposure as rapidly and sensitively as possible. Educators may hear this term during staff meetings about school safety or during discussions about student privacy in the event a student tests positive for COVID-19.

3. Face mask. This is a generic term for any commercially produced or homemade mask worn over the nose and mouth to prevent the spread of the virus that causes COVID-19. It can refer to face coverings, surgical masks, and N95 respirators. Discussions about the use of face masks could come up in return-to-school planning and also during IEP or Section 504 team meetings.

4. Pediatric multisystem inflammatory syndrome. This is a rare condition in children that may be associated with the virus that causes COVID-19. It generally involves the swelling of multiple parts of the body. A child with this condition may exhibit fever, abdominal pain, vomiting, diarrhea, rash, fatigue, and localized pain. Parents of students with disabilities may raise concerns about pediatric multisystem inflammatory syndrome during discussions about student health or placements for the upcoming school year, especially if their children are medically fragile or are at greater risk for COVID-19.

5. Teletherapy. This refers to the use of videoconferencing software to deliver speech, occupational, or mental health therapy services when those services cannot be provided in person. Educators who participate in IEP and Section 504 team meetings may already be familiar with this term. Team members may mention teletherapy when discussing the appropriateness of the related services a student received when schools were closed in spring 2020 or when planning for possible school closures in the upcoming school year.

Amy E. Slater, Esq., covers special education legal issues for Special Ed Connection, a 91¿´Æ¬ sister publication.

Links to related documents, including “STATE-BY-STATE: Estimated CARES Act Education Stabilization Fund allocation levels.,” are available to Special Ed Connection subscribers.

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