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NSBA Presentation Post legal issues


									    Post-9/11 Issues Affecting
         School Districts

Maree F. Sneed              John W. Borkowski
Hogan & Hartson L.L.P.      Hogan & Hartson L.L.P.
555 Thirteenth Street, NW   546 Carondelet Street
Washington, DC 20004        New Orleans, LA 70130-3588 
(202) 637-6416              (504) 593-0824
               Post-9/11 Issues
I.      School Safety
II.     USA Patriot Act
III.    Reservists
IV.     NCLB
V.      Preventing Harassment
VI.     Issues Regarding Muslim Students
VII.    Accommodating Muslim Teachers
VIII.   The Pledge of Allegiance
IX.     Immigration

          I. School Safety
Seven schools were near
 ground zero.
3000 children were
New York had required all
 schools to have emergency
 plans in place by July 1,

         I. School Safety (2)
Lessons . . .

Plans were incomplete and not in usable
Teachers were not fully informed about the
Evacuations proved problematic, e.g. no
 regrouping locations had been identified.

         I. School Safety (3)
Lessons . . .
Plans should be usable action plans.
Plans should be practiced.
Communication is essential.
Parents should be aware of emergency

            I. School Safety (4)
District Crisis Plans
 Coordinate with local law enforcement and emergency
 Identity possible dangers in areas near schools;
 Establish multiple evacuation routes;
 Identify reunification sites; and
 Provide first-responder training for security guards and
  other school personnel.
   Resources for District plans:
         I. School Safety (5)
Issues for School Sites

   Control access to school sites.
   Consider periodic inspections at schools.

          I. School Safety (6)

Communications Issues
   Establish hotlines for principals;
   Provide or require cell phones for teachers;
   Use District e-mail system; and
   Evaluate cell phone policies for students.

          I. School Safety (7)
In September 2004, the America Prepared
Campaign, Inc. released a report finding few
of the nation’s 20 largest school districts are
well prepared for a terrorist attack. The full
report is available at:

         I. School Safety (8)
The report finds several districts, including
Fairfax, Virginia and Montgomery County,
Maryland, to be “well-prepared” and attaches
sample materials that may be incorporated in
Crisis Response Plans.

          I. School Safety (9)
In response to the terrorist incident at a school
is Beslan, Russia, the Department of
Education issued a “Dear Colleague” letter on
October 6, 2004 addressing school safety and
highlighting lessons learned from that tragic

          I. School Safety (10)
Some of the principle DOE recommendations

   Review all school emergency and crisis management
   Practice your plan;
   Consider single entry points for all students, staff, and
   Enhance security of school buildings themselves, see for suggestions; and
   Look for Homeland Security/FBI indicators of possible
    terrorist or criminal threat.

           I. School Safety (11)
Possible indicators of a threat:
 Pedestrian or mobile surveillance;
 Unusual interest in security, entry points, and fences;
 Interest in obtaining site plans for schools, bus routes,
  attendance lists and other information about a school, its
  employees or students;
 Observation of security reaction drills or procedures;
 Increase in anonymous telephone or e-mail threats;
 Prolonged static surveillance using strangers; and
 Discreet use of cameras or video recorders, or drawing or
  note-taking at non-tourist locations.

          I. School Safety (12)
Other DOE reminders:
 Emergency website:
 Emergency Response and Crisis Management
   $28 million in DOE awards
   More expected in 2005
 The Safe Schools-Health Schools Initiative Grants
   $95 million in 2004
   More anticipated for 2005

          II. USA Patriot Act

  Enhanced surveillance authority
   for federal government
  Reorganized of federal agencies
   related to homeland security

       II. USA Patriot Act (2)
Amendments to Family Educational
Rights and Privacy Act (“FERPA”):
  FERPA prohibits school districts from
   releasing educational records without
   20 U.S.C. §1232g

     II. USA Patriot Act (3)
Section 507 of the Patriot Act provides that the
Attorney General or designee may submit a
request to a court for an ex parte order
requiring a school district:
 To gather records related to a terrorism
  investigation; and
 In this context, disseminate and use such records
  consistent with such guidelines established by the
  Attorney General in consultation with the Secretary
  of Education.

             III. Reservists
In both wars since 9/11, reservists have
 been called to active duty, including many
 school employees.
The Uniform Services Employment Rights
 Act of 1994 (“USERR”) protects the
 employment rights of persons who
 undertake military service.
 38 U.S.C. §§4301-4333.

           III. Reservists (2)

As NSBA’s excellent publication on
USERRA notes, the Act outlines
responsibilities of military service members
and school districts. See NSBA Federal
File: Guidance on School Law: USERRA

          III. Reservists (3)
Responsibilities of the uniformed
service member are to:
  Provide written or advance notice to
  Provide documentation to the school
   district upon returning to their job; and
  Report back to work on time and as
   required by USERRA.

              III. Reservists (4)
School District Responsibilities:
    Grant leave of absence upon employee notification;
    Provide timely reinstatement to service member upon
     return from duty;
    Grant status, seniority, and applicable benefits to
     active duty and returning members;
    Train member, if necessary, for reemployment; and
    Do not discriminate in hiring, reemployment,
     promotion or benefits based on membership in the
     armed forces.

       III. Reservists (5)
The Department of Labor, on
September 20, 2004 announced new
proposed regulations with respect to
20 CFR Part 1002
Comments are due on or before
November 19, 2004.

              IV. NCLB Issues
 The No Child Left Behind Act (“NCLB”) was
  passed by Congress on December 13, 2001
  and signed into law on January 8, 2002.
 NCLB may have been passed in part:
   Because of post-9/11 patriotism and
   Because Congress was focused on national
    security legislation (such as the USA Patriot Act)
    and spent less time debating federal education

          IV. NCLB Issues (2)
U.S. Secretary of Education Roderick Paige has
suggested that 9/11 affected the timing of
passage of NCLB:
   “When President Bush took office in January 2001, it
    wasn't clear that this sea change [in federal education
    policy] would occur. . . . Congress did not move
    expeditiously in debating and subsequently adopting the
    bill. Through the debate on tax cuts, the change in
    leadership in the Senate, the terrorist attack on 9/11, and
    the closure of the congressional office buildings due to the
    anthrax ‘attacks,’ it was not until the end of 2001 that
    Congress moved to pass the bill.”

       IV. NCLB Issues (3)
Certain provisions of NCLB may
reflect post-9/11 concerns. For
Military Recruiting Provisions
Boy Scouts of America Equal
 Access Act

         IV. NCLB Issues (4)
Military Recruiting

         IV. NCLB Issues (5)
Military Recruiting
 Any school district receiving ESEA funds must, upon
  request of military recruiters or higher education
  institutions, provide access to secondary school students’
  names, addresses, and telephone listings, unless parents
  opt out of such disclosure in writing. School districts must
  notify parents of the option to require prior written parental
  consent to such disclosure. School districts must provide
  military recruiters the same access to secondary school
  students as is provided generally to postsecondary
  educational institutions or prospective employers.
 USDOE issued guidance regarding this requirement on
  October 9, 2002.

           IV. NCLB Issues (6)
Military Recruiting – Opt Out vs. Opt In

 Some school districts have implemented requirement
  through opt-in process to protect student privacy.
 USDOE’s Family Policy Compliance Office has suggested,
  however, that an opt-in process would not comply with “the
  letter and spirit of the law.” A July 2, 2003 joint letter from
  USDOE and the Department of Defense likewise indicates
  that an opt-in process is inappropriate: NCLB does “not
  permit LEAs to institute a policy of not providing the
  required information unless a parent has affirmatively
  agreed to provide the information.”
 The Department of Defense plans to notify governors and
  Congressional representatives if it believes a school or
  district is not in compliance.

      IV. NCLB Issues (7)
Military Recruiting – Implementation

 Review policies and practices for
 Consider policy modifications.

         IV. NCLB Issues (8)
Patriotic Organizations
                   The Boy Scouts

         IV. NCLB Issues (9)
Patriotic Organizations: Boy Scouts
 Public schools, school districts, and states that have
  designated an “open forum” or “limited public forum” and
  that receive funds from USDOE are prohibited from
  denying equal access or fair opportunity to meet to, or
  discriminating against, any group officially affiliated with
  the Boy Scouts of America or any other youth group
  recognized under federal law as a “patriotic society.”
 USDOE issued a notice of proposed rulemaking regarding
  this requirement on November 15, 2002. USDOE indicated
  that it planned to issue further proposals in November
  2003, but as of September 20, 2004, there have been no
  additional regulatory developments on this issue.

IV. NCLB Issues (10)
  Patriotic Organizations
  Boy Scouts – Implementation

   Review policies and practices for
   Consider policy modifications.

    V. Preventing Harassment
Title VI and Title VII prohibit
 discrimination on grounds of race or
 national origin.
Such prohibited discrimination can
 include harassment by school
 employees or students.

 V. Preventing Harassment (2)

                     Title VI

No individual may be excluded from participation
 in, be denied benefits of, or otherwise subjected
 to discrimination on the ground of race, color or
 national origin in any program or activity that
 receives federal funds. 42 U.S.C. 2000

V. Preventing Harassment (3)
                      Title VII

 It shall be unlawful for an employer “to discriminate
     against any individual with respect to his
     compensation, terms, conditions, or privileges of
     employment because of such individual’s race,
     color, religion, sex or national origin.”
     42 U.S.C. §2003-2(a)(1)

V. Preventing Harassment (4)
 Types of Harassment

   Racial or national-origin based
    conduct that has a discriminatory effect
    and that consists of different treatment
    on such grounds by the school district’s
    employees acting with the scope of their

V. Preventing Harassment (5)

 A racial or national-origin based hostile
  environment that is created, encouraged
  or tolerated and that constitutes differential
  treatment on such grounds

  V. Preventing Harassment (6)
 Hostile Environment
    Harassing conduct (physical, verbal, graphic or
      •   Insults
      •   Name calling
      •   Taunting
      •   Intimidation
      •   Hateful graffiti
    Sufficiently severe, persistent and pervasive to
     interfere with or limit an individuals ability to
     participate in or benefit from the program or activity
    Remember: The harasser need not be district
V. Preventing Harassment (7)
Two keys to liability for damages
   Notice
   An inadequate District response

  V. Preventing Harassment (8)
A Checklist for School Districts
    Does your school district have clear policies
     addressing all kinds of harassment?
    Is the guiding principle of these anti-harassment
     policies creating a safe, respectful environment
     for learning?

  V. Preventing Harassment (9)
A Checklist for School Districts (cont’d)
 Do the policies:
       define harassment;
       require staff to report possible harassment and
        to intervene and stop it;
       identify responsible persons who can receive
        reports of harassment; and
       list possible consequences for harassers?

  V. Preventing Harassment (10)
A Checklist for School Districts (cont’d)
    Who has been appointed to coordinate the
     prevention efforts and to ultimately receive
     any reports of incidents?
    Does your school district’s student code of
     conduct and personnel policies also prohibit
     harassment and provide for effective

    V. Preventing Harassment (11)
A Checklist for School Districts (cont’d)
    Has your school district effectively made all
     members of the school community, including
     students and parents, aware of its harassment
    Have responsible school district personnel been
     trained to conduct thorough investigations and
     to respond appropriately?

    V. Preventing Harassment (12)
A Checklist for School Districts (cont’d)
    Is the school district prepared to document fully
     the scope and findings of any harassment
    Is the school district ready to deal with privacy
    Is the school district aware of which incidents
     should or must be referred to law enforcement
     officials in your state?

    VI. Accommodating Muslim
First Amendment Issues with
Respect to Hijabs or Headscarves
    Oklahoma Hijab Lawsuit: A sixth-
     grade Muslim girl was suspended for
     wearing a hijab because it violated the
     school district’s dress code.
          The student filed a lawsuit in the U.S.
           District Court for the Eastern District
           of Oklahoma alleging a violation of her
           right to free exercise of her religious
          The U.S. Justice Department
           intervened on the side of the student.

        VI. Accommodating Muslim
               Students (2)
First Amendment Issues with respect to Hijabs or
       The Oklahoma case was settled in May 2004 and required
        the school district to:
                Pay an undisclosed sum of money;
                Change its dress code to allow students to wear
                 religious headgear if they apply and have their requests
                 approved by the school board; and
                Put in place a training program for all teachers and
                 administrators about the new dress code.
       With respect to the Oklahoma settlement, the Assistant
        Attorney General for Civil Rights, stated that “[t]his
        settlement reaffirms the principle that public schools
        cannot require students to check their faith at the school
        house door.”
       VI. Accommodating Muslim
              Students (3)
First Amendment Issues with Respect to Hijabs or Headscarves
       Louisiana Hijab Incident: A Louisiana high school removed
        a social studies teacher who allegedly had pulled back a
        Muslim student’s hijab and said “I hope God punishes you.
        No, I’m sorry, I hope Allah punishes you.”
       August 20, 2004, Letter from Justice Department: The
        Assistant Attorney General for Civil Rights issued a letter to
        the state departments of education that referred to both the
        Oklahoma and Louisiana hijab incidents and asked school
        officials to help prevent “ugly and hateful incidents of
        violence and discrimination directed against Muslim, Sikh,
        and South-Asian students, motivated by religious or national
        origin intolerance.”
            The letter also suggested that prohibiting a student from
             wearing a hijab is “inconsistent with federal law and should not
             be tolerated.”

      VI. Accommodating Muslim
             Students (4)
First Amendment Issues with Respect to Hijabs or
    Isaacs v. Board of Education of Howard County, 40
     F.Supp.2d 335 (D. Md. 1999): A federal district court ruled
     that a high school could prevent a student from wearing a
     multicolored headwrap to school for cultural reasons. In
     doing so, it explained that the school’s “no-hats” policy,
     which included an exception for religious headgear, did not
     violate a student’s free speech rights or due process rights.
       Although the court found that the headwrap constituted speech,
        the court explained that the “no-hats” policy served the
        important government interest of providing a safe learning
       The court also emphasized that the school can treat religious
        headgear differently because it implicates two constitutional
        rights: freedom of speech and freedom of religion.

  VI. Accommodating Muslim
         Students (5)
First Amendment Issues with Respect to Hijabs
or Headscarves
   General Rule: If school districts have policies
    preventing the wearing of hats or other
    headgear, the districts should make an
    exception for religious headgear, such as
    yarmulkes and hijabs.

     VI. Accommodating Muslim
            Students (6)
Friday Absences for Religious Purposes
   Commonwealth v. Bey, 70 A.2d 693, 694 (Pa. Super Ct.
    1950): A Pennsylvania state court found that requiring
    continuous attendance at a school did not violate the
    parents’ religious freedom because the requirement is
    “reasonable and enforceable” and because the parents had
    the option of sending their child to a private school.
        Pennsylvania’s compulsory school code required students to
         attend “continuously throughout the entire term” a public
         school, private school, or any educational institution. A
         Muslim family, however, refused to send their children to
         schools on Friday because it is a sacred day for their religion.
        The court acknowledged that it is “virtually impossible
         properly to educate a child who is absent one day a week”
         because “each day’s school work is built upon the lessons
         taught on the preceding day” and “the pupil is not able to keep
         pace with his classmates.”

       VI. Accommodating Muslim
              Students (7)
Friday Absences for Religious Purposes
    Church of God (Worldwide Texas Region) v. Amarillo Independent
     School District, 511 F.Supp. 613, 618 (N.D. Tex. 1981): A federal
     district court found that a school district’s religious observance
     policy violated the Free Exercise Clause.
          The tenets of the student’s religion dictated that the student miss
           seven days of school each year, but the school district’s policy limited
           the number of excused absences for religious holidays to two days
           each school year.
          The court concluded that the school’s policy burdened the plaintiff’s
           religious beliefs because no credit was given for make-up work when
           absences were unexcused.
          The school district argued that any burden suffered by the plaintiff
           was justified by the policy’s goal of reducing the administrative
           burden involved in accommodating absent students. The court
           disagreed and observed that a “handful of absences” does not result
           in an unreasonable administrative burden.

     VI. Accommodating Muslim
            Students (8)
Friday Absences for Religious Purposes
   General Rule: While a school district must offer some
    religious accommodation, it has discretion in deciding
    how much accommodation to provide. It is unlikely
    that a district would be found liable for not excusing
    regular Friday absences for religious observance, so
    long as its policy is neutral and applied fairly to all.
      The District can also minimize its exposure to potential
       challenges by:
         – basing its decisions on the number of excused absences
         – emphasizing how recurring absences increase teacher
           workload; and
         – explaining how absences make it more difficult to educate both
           the students who are absent and those in attendance.
      VI. Accommodating Muslim
             Students (9)
Parental Objections to Curriculum
    Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st
     Cir. 1995): The First Circuit found that a student’s
     compelled attendance at an AIDS awareness assembly did
     not violate the Free Exercise Clause or the parents’
     substantive due process right to control their child’s
       The court concluded that the parents’ due process
        rights do not “encompass a fundamental constitutional
        right to dictate the curriculum at the public school to
        which they have chosen to send their children.”
       It also dismissed the free exercise claim because the law
        was applied neutrally to all students.

       VI. Accommodating Muslim
              Students (10)
Parental Objections to Curriculum
    Leebaert v. Harrington, 332 F.3d 134, 143-44 (2d Cir. 2003): The
     Second Circuit considered whether a school district violated the
     parents’ right to control their child’s education by not excusing the
     child from a health education course. The court concluded that
     parents do not have a “fundamental right . . . to tell a public school
     what his or her child will and will not be taught.”
    Jabr v. Rapides Parish School Board, 171 F.Supp.2d 653 (W.D. La.
     2001): School violated Establishment Clause by making New
     Testament Bibles available to elementary school students.
          Parents of Muslim students objected when principal of elementary
           school presented students with Bible while wishing each student
           “Merry Christmas.”
          The court emphasized the “vulnerability of elementary school children
           to authority figures, especially teachers and school administrators.”
          By making Bibles available to students, the school advanced religion
           and violated the endorsement test.

     VI. Accommodating Muslim
            Students (11)
Parental Objections to Curriculum
   General Rule: School districts have considerable
    discretion in deciding whether a specific
    nonreligious text is related to the district’s
    legitimate interest in educating children.

     VII. Issues Regarding Muslim
Religious Attire for Teachers
   Cooper v. Eugene School District, 723 P.2d 298 (Or.
    1986), appeal dismissed by 480 U.S. 942 (1987): The
    Oregon Supreme Court upheld the validity of Oregon
    statutes preventing public school teachers from
    wearing any religious dress.
      The teacher, a Sikh, wore white clothes and a white
      The court found that the Oregon statutes did not impose a
       burden on free exercise rights and that the statutes were
       tailored to the state interest in preserving the appearance
       of religious neutrality in public schools.
      However, the court noted that offending dress under the
       statute does not include dress that communicates an
       ambiguous message, such as the occasional wearing of
       jewelry that incorporates common decorations like a
       cross or a Star of David.
      VII. Issues Regarding Muslim
               Teachers (2)
Religious Attire for Teachers
   United States v. Board of Education for School District of
    Philadelphia, 911 F.2d 882 (3rd Cir. 1990): The Third Circuit
    upheld the Pennsylvania Garb Statute, explaining that it
    would have imposed undue hardship to require the school
    board to accommodate Muslim public school teacher by
    allowing her to teach in her religious garb.
      The court concluded that “the wearing of religious attire by
       teachers while teaching [can be] a significant threat to the
       maintenance of religious neutrality in the public school
      It did not violate Title VII’s prohibition on adverse actions
       against an employer based on religion because requiring an
       employer to sacrifice a compelling state interest in religious
       neutrality would undeniably constitute an undue hardship.

       VII. Issues Regarding Muslim
                Teachers (3)
Religious Attire for Teachers
    Nichol v. Arin Intermediate Unit, 268 F.Supp.2d 536 (W.D. Pa. 2003):
     The district court held that a Religious Affiliation Policy – that
     prohibited public school employees from displaying religious
     emblems, dress, or insignia – violated the Free Exercise Clause.
        Elementary school instructional assistant was suspended for refusing
         to remove or conceal a cross that she wore as a necklace.
        In granting a preliminary injunction, the court emphasized that the
         Religious Affiliation Policy, as well as the Pennsylvania Garb statute,
         would likely not withstand scrutiny under current Establishment Clause
         and Free Exercise Clause analyses.
        It also concluded that the plaintiff had a strong likelihood of success on
         a free speech claim because preventing employees from “quietly
         expressing” her personal religious beliefs is a broad category of
         content and viewpoint discrimination.

     VII. Issues Regarding Muslim
              Teachers (4)
Religious Attire for Teachers
   General Rule: While the law is unsettled, it
    appears that school districts can prohibit Muslim
    teachers from wearing a hijab while teaching.

   VIII. The Pledge of Allegiance

Elk Grove Unified School District v. Newdow
124 S. Ct. 2301 (2004)
   Father alleged classroom recitation of the
    Pledge of Allegiance violates the
    Establishment Clause because the Pledge’s
    reference to one nation “under God” is
   The Supreme Court held that the father did not
    have standing to sue on daughter’s behalf

    VIII. The Pledge of Allegiance (2)

Post-9/11 patriotism may have affected the
Court’s decision to focus on standing, rather
than the underlying constitutional question.

 VIII. The Pledge of Allegiance (3)
Question whether the Pledge violates the
Constitution remains unresolved
   Other challenges are likely
      Example: Circle School v. Pappert, 2004 WL 1852953
       (3d Cir. Aug. 19, 2004) – struck down Pennsylvania law
       provision requiring schools to notify parents if their
       children do not participate in classroom recitation of the
      Example: Myers v. Loudoun County School Board, 251
       F. Supp. 2d 1262 (E.D. Va. 2003) – rejected challenge to
       Pledge as advancing a “civic religion” and found that the
       Pledge was a “secular statement”

    VIII. The Pledge of Allegiance (4)

The politics, of course, continues:
  On September 23, 2004, the House voted to
   protect the word “under God” from further
   challenge by restricting federal jurisdiction
   over such claims.

   VIII. The Pledge of Allegiance (5)
Next Steps:
    Because many states require patriotic exercises, including
     classroom recitation of the Pledge, review school policies
     regarding recitation of the Pledge (if any) to ensure they are
     implemented consistent with Constitution.
    For example, schools must permit students to opt out of reciting
     the Pledge.
        Right to opt out established by Supreme Court in West
         Virginia State Board of Education v. Barnette, 319 U.S. 624
           – Options include permitting students to remain seated or to
             leave classroom during Pledge
        In Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004), for
         example, court found Alabama school district, teacher, and
         principal could be liable if they punished the student plaintiff
         for refusing to say the Pledge (or for raising his fist instead of
         reciting the Pledge).
          IX. Immigration
Post 9/11, the Bureau of Immigration and Customs
Enforcement with the Department of Homeland
Security was given authority to monitor the visas of
foreign students, including public school exchange
students holding visas.

          IX. Immigration (2)
The Bureau may collect the following information
with respect to such students:
   Name;
   Address;
   Visa classification and date; and
   Whether the student is satisfying the terms and
    conditions of the foreign exchange program.
  8 U.S.C. § 1372

          IX. Immigration (3)
Other Changes Post 9/11

   Increased Security Checks at U.S. Consulates: Due
    to more thorough checks at U.S. Consulates, foreign
    students studying in U.S. public schools may
    experience processing delays in obtaining their visas.

   Increased Enforcement and Border Surveillance:
    Parents of students may be more likely to be deported.

            IX. Immigration (4)
Special Registration: The Immigration and Naturalization Service
(“INS”) has imposed Special Registration requirements for certain
non-immigrant aliens (e.g., aliens from particular countries like
Iran and Syria and aliens who meet certain pre-existing criteria).
Those designated for Special Registration are required:
    To be fingerprinted, photographed, and registered at the port-of-
    To report in person at a local INS office if the alien remains in the
     United States for 30 days or more;
    To report in person at a local INS office to re-register annually;
    To notify the INS of any change of address, change of employment,
     or change of educational institution, within 10 days of such
     change; and
    To report in person to an INS inspecting office at the port of entry
     upon the departure from the United States.

               Post-9/11 Issues
I.      School Safety
II.     USA Patriot Act
III.    Reservists
IV.     NCLB
V.      Preventing Harassment
VI.     Issues Regarding Muslim Students
VII.    Accommodating Muslim Teachers
VIII.   The Pledge of Allegiance
IX.     Immigration


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