LEGAL ALERT: Transgender Students’ Rights: The Impact of the Grimm Case on South Carolina School Districts

11/12/19

On August 9, 2019, a federal district trial court in Eastern Virginia sided with a transgender student who filed suit against his school district for transgender discrimination and is allowing the lawsuit to move forward. This most recent decision comes years after the suit was initially filed in June 2015, after Gavin Grimm (“Gavin”), a female to male transgender student, was prohibited from using the boys’ bathroom by the school district’s board policy in the fall of 2014. Now that a Virginia federal court has ruled in favor of Grimm and allowed him to proceed with his case, school districts across the country – and particularly in the southeast, including South Carolina – are trying to understand how the
court’s decision will impact their students and what, if any, steps should be taken next.

Recent Grimm News

On August 9, 2019, the trial court in the Eastern District of Virginia, ruled in favor of Grimm, deciding that he should be permitted to move forward with his Title IX discrimination claim and Fourteenth Amendment (equal protection) claim. Concerning the Title IX claim, the court found the school district’s argument that its “policy treats all students equally on the basis of physiological or anatomical characteristics” unpersuasive. It also found the school district “crafted a policy that is based on stereotypes about gender . . . and the board had engaged in discriminatory treatment because it prevented [Grimm] from using the restroom that matched his gender identity.” 

The trial court then took up Grimm’s Fourteenth Amendment (equal protection) claim and concluded the school board failed to show that the challenged policy is "substantially related" to protecting student privacy. In making decisions relating to transgender students, many school districts often rely upon this argument. In this case, however, the court was not convinced, relying on the fact that “the Board received no complaints regarding any encounter with Mr. Grimm in a restroom.” It also noted the school board “conceded that there is no privacy concern for other students when a transgender student walks into a stall and shuts the door.” Based on this, the court will allow Grimm to proceed with his case. At this stage of the lawsuit, we will have to wait and see how the facts develop and whether a trial will be scheduled to determine the overall outcome of the case.

How does a Virginia transgender lawsuit affect a school district in South Carolina?

The United States has two court systems: a federal court system, dividing our country into thirteen federal court circuits (areas); and fifty state court systems, one for each state. Generally, Federal courts resolve disputes that involve federal laws, and our state courts rule on state law issues. With regard to federal law, South Carolina is part of the Fourth Judicial Circuit along with Virginia, Maryland, West Virginia, and North Carolina. In a nutshell, that means that the federal courts located in our state are often persuaded by rulings of other federal courts in the Fourth Circuit, including those in Virginia.

In the Grimm case, because the student sued the school district for violations of his federal legal rights, the U.S. federal court system is responsible for making decisions about the lawsuit. Specifically, as Gavin’s case involved a school district in Virginia, the Fourth Circuit and its courts were in charge of making decisions about the case. Thus, school districts, especially in the Fourth Circuit, including South Carolina, are closely following and monitoring the outcome of the Grimm case and may notice a rise in transgender student lawsuits. For example, if a school district implements policies that restrict a transgender student’s rights, other students are likely to follow in Gavin Grimm’s footsteps and file lawsuits alleging violations of their federal rights, which may be costly for both the school district and its insurance companies. We also anticipate a rise in controversial requests by transgender students seeking permission to use bathrooms and locker rooms assigned to the gender with which they identify rather than their biological genders, and they – along with parents and transgender rights groups – will often lean on and rely on the Grimm case to support their belief that they are entitled to have these requests granted.undefined

Figure 1. The geographic boundaries ofthe Fourth Circuit Court of Appeals
delineating the District Courts whereGrimm will have a prece den tial impact.

While the Grimm case seems to indicate that Virginia federal courts will not permit school districts to implement bathroom policies that prohibit transgender students from using the bathrooms associated with their genders, those specific court holdings, while important and persuasive, are not binding on South Carolina at this time.

This issue remains underdeveloped and provides no precise guidance for school districts in South Carolina. It is certain that school districts’ exposure to legal liability regarding the protection of transgender students’ rights will increase and may create negative media attention. However, with no clear statutory or consistent judicial guidance, the way school districts chose to handle requests for transgender students must be handled with care and caution. We continue to encourage school districts in South Carolina to consider the best interests of all students and work as a team – along with transgender students and their parents – to formulate a plan that will continue to allow the student to succeed in the school setting while making any necessary accommodations district administration feels
comfortable granting, weighing the pros and cons for all those involved. At this time, school districts in our state are not legally required to permit a transgender student to use the bathroom of his choice and may, instead, choose to provide other alternatives. Nevertheless, as this issue continues to be battled in court, we expect more definitive answers, especially for our state, in the near future.

If you have any questions about the Grimm case and its impact on your school district, please let us know. We wish you continued success this school year and look forward to sharing our next Issue of the Month.

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Get on the Bus and Buckle Up: Navigating Liability in Transporting Students

07/29/19

 

Bus drivers are essential team members in a school district; they are the first and, usually, the last employee who has contact with students each school day.  To that end, districts must hire, train and, when required, discipline drivers with student safety and supervision in mind.  For districts to operate efficiently and appropriately, bus drivers must be supported by transportation personnel along with building administrators and teachers. It takes a village to raise a child – nowadays, bus drivers and bus assistants not only transport students but also serve as mentors and disciplinarians.  Drivers must possess the necessary skills to communicate with parents; resolve behavior problems; ensure proper supervision; and routinely maintain documentation.

Over the past several years, we have seen an increase in the number of lawsuits filed against districts arising from an incident involving a school bus.  These suits include an incident where a driver stopped the bus in a rural area to allow a kindergarten student to relieve herself rather than wet herself; an incident where a student fell asleep on the bus and was not discovered by the driver during the post-route inspection; and several incidents where a bus assistant allegedly assaulted a student.  Suits also are common where a parent/guardian alleges that, because of inappropriate supervision on the bus, their child was sexually assaulted by another student.  While the South Carolina Department of Education (DOE) is responsible for carrying liability insurance to cover roadway accidents that result in injury to bus passengers and/or third parties, because drivers are employed by a district rather than DOE, districts are responsible for defending against claims that a student was injured because the driver did not properly supervise students.

Anyone interested in becoming a bus driver must complete and submit a district employment application; complete and submit an application to DOE to attend the required new bus driver class; attend the 20-hour new bus driver class; pass the DOE test; obtain a Department of Transportation (DOT) physical; obtain the requisite medical tests; pass the behind-the-wheel training and commercial driver’s license (CDL) test; and successfully complete a physical performance test, drug screening, and SLED background check. 

In addition to pre-employment training, bus drivers must participate in a minimum of ten hours of in-service annual training.  While half of these hours consist of mandated DOE modules, five of the hours are selected by the employing district.  These hours should include training on supervising students, handling student misconduct and interacting with special education students.  To train bus drivers and assistants who transport special needs students, many districts ask their drivers and bus assistants to complete “The People Factor” and “Transporting Students with Special Needs” DOE modules.  In June 2018, DOE instituted a new in-service training called “Get on the Bus! Behavior Supports for Bus Drivers and Paraprofessionals.”  All drivers also should be trained on the district policies that impact their employment, including use of social media and sexual harassment.

Special education bus drivers are required to have an additional four hours of training every two years. This training should include the following topics: special education disciplinary requirements, confidentiality requirements pursuant to the Family Education Rights and Privacy Act (FERPA), and disciplinary documentation. Dependent upon the needs of the students on a specific bus, districts also may train drivers on the use of appropriate restraints and the handling of medical needs. Because driving a school bus is much more than monitoring the roadways, we recommend that districts develop a strategic training plan involving not only transportation personnel but also building and district level administration.

Though buses are operated by district employees, DOE controls and performs maintenance on buses as necessary.  If a bus needs to be repaired, a bus driver must complete the requisite form and provide it to the transportation coordinator/supervisor. The supervisor must then forward the form to the appropriate department. Drivers should never attempt to drive a bus that is not safe and must ensure that appropriate inspections and safety assessments are completed daily. Inspections should include checking that the bus turns on, that all lights work, that all cameras are working, that the emergency door(s) are locked, that the bus has a First-Aid kit, and that the bus radio is working. 

While not required by law, most school buses have one or more cameras installed to promote the safety of passengers.  Though school buses are maintained by DOE, if a district decides to install cameras on its buses, the district should ensure that all cameras are properly installed, inspected, and maintained, as DOE does not assume responsibility for cameras.

Recordings from bus cameras can be used for student disciplinary purposes as well as for determining whether students were appropriately supervised on the bus.  Because of the increased number of fights and alleged sexual incidents occurring on buses – oftentimes captured both by bus footage and students using personal cell phones, districts must have working cameras on the buses and know and follow the district’s video retention policy.  If the camera over-records every thirty days, it is important to know when and if the recordings are automatically uploaded to a remote server or if the recordings must be manually copied to a server or other electronic device for storage.

We recommend cameras be inspected routinely to ensure they are properly working and that significant recordings are not be over-recorded or otherwise lost.  If a bus driver knows or suspects that a camera is not working, the bus driver should immediately report the malfunction to the transportation supervisor.  The supervisor or transportation director should then document the malfunction, inspect the camera and repair as necessary.  If a district is sued over a bus incident, it is extremely important that district officials are able to locate the relevant camera footage.

We trust this information will be helpful as districts begin to prepare for the upcoming school year.  If you have questions or would like us to assist in training your bus drivers and bus assistants, please feel free to contact our office.

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Concealed Carry and Weapons on School Grounds

05/15/19

School districts across the state continue to have questions about an individual’s ability to bring a firearm onto school district property. Below, we outline the most recent guidance and provide some policy considerations that you may find helpful as you navigate this issue in your district.

The Law

Generally, it is unlawful for anyone to knowingly possess a firearm within 1,000 feet of school grounds. This does not apply to private property adjacent to school grounds such as a commercial store, driveway, or residence. However, there are two main exceptions to this general prohibition. First, an individual who possesses a state-issued concealed weapons permit (CWP) may carry an unloaded firearm onto school grounds if the weapon is stored in a locked container or firearms rack. Second, a law enforcement officer acting in his/her official capacity may bring a weapon on school grounds.

Additionally, South Carolina law states it is unlawful for a person to possess a firearm of any kind on any premises or property owned, operated, or controlled by a private or public school without the express permission of the authorities in charge of the premises or property. “Premises” and “property” do not include state or locally owned or maintained roads, streets, or rights-of-way running through or adjacent to premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, which are open full-time to public vehicular traffic.

South Carolina law also states it is unlawful for any person except state, county, or municipal law enforcement officers or personnel authorized by school officials, to carry firearms while on any elementary or secondary school property.

These rules prohibiting the possession of a firearm on school property do not apply to a CWP holder so long as the weapon remains inside an attended or locked motor vehicle and is secured in a locked box in the trunk or a glove compartment.

Attorney General Opinions

Several South Carolina Attorney General (“SCAG”) Opinions provide guidance on this issue.

The SCAG most recently opined that school districts are not permitted to implement a policy prohibiting CWP holders (including staff) from parking on school grounds with a firearm locked securely in their trunk or glove box pursuant to state law. However, this opinion appears to run afoul with a State law granting certain rights to public and private employers. The SCAG also released an opinion in 2009, concluding that a county could adopt an ordinance prohibiting the possession of firearms within its parks. This opinion is significant to school districts because, as political subdivisions, districts also likely have the statutory authority to prohibit the possession of firearms on its grounds.

Deciding on a Weapons Policy

Most districts utilize their Staff Conduct policies to outline their position on weapons on school grounds. It is our position districts have some discretion in how they address this issue. As discussed above, the law and SCAG opinions on this issue are unclear, and there presently are no court decisions providing clarification. Boards should decide whether to follow the most recent SCAG Opinion and allow those district staff possessing a CWP to have a firearm in their locked cars parked on district property. If the board adopts that position, the district’s Staff Conduct Policy should state “possession of weapons on school grounds by employees is prohibited, unless possession is authorized by South Carolina law.”

If the board is going to allow CWP holders the right to possess firearms in their cars, the board also should consider whether it wants to provide a process by which a CWP holder can be given permission to bring a firearm into the building (e.g., the board secretary who is required to leave the building late at night).

Alternatively, it is our opinion a board has the right, as a public employer and as the owner of district property under South Carolina law, to adopt a policy prohibiting staff, regardless of CWP possession, from possessing a firearm on school grounds. In this case, the district’s Staff Conduct Policy should state “possession of weapons on school grounds by employees is prohibited, regardless of state-issued concealed weapons permit.” The district must then post the required “No Concealable Weapons” signage on school property—State law specifies how those signs must be worded, placed, etc.

Final Thoughts

What is clear about the limitations placed on CWP holders with respect to firearm possession on school premises? CWP holders may not bring weapons into a school building without permission from the district. The weapon must remain in a locked car, either in a closed glove box/console or in a locked container in the luggage compartment. Additionally, CWP holders may not bring weapons into the district office or to a school board meeting without permission from the district. Most importantly, the district has the sole discretion whether to grant that permission and may revoke it at any time.

If your district has questions about the options related to firearm possession on school grounds by employees, please feel free to contact our office.

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EMPLOYEE LEAVE

03/16/19


Questions related to employee leave for reasons of personal illness or injury are some of the more confusing legal issues that school districts regularly face.  Set forth below is a summary of the legal principles governing such employee leave to assist school officials in navigating through the maze of state and federal rules and regulations related to leave. 

Depending on the circumstances of a particular situation, employees who become injured or ill may be entitled to four kinds of leave.   First, under S.C. Code § 59-1-400, all full-time employees of a school district accrue one and one-fourth days of sick leave for each month of active service, or 12 days for each nine months of active service.  Sick leave which is accrued but not used may be accumulated up to 90 days pursuant to State law.  

Second, an employee who is injured in the course of employment may be eligible for leave under the Workers’ Compensation laws.  An employee who is injured on the job has the option of electing to use either all or a specified portion of their accrued leave time or Workers’ Compensation benefits.  The election of the employee is irrevocable as to each incident.  If an employee elects to use accrued leave time, and that time is exhausted, the employee then is entitled to Workers’ Compensation benefits.  As a practical matter, there generally is no limit on the amount of time that an employee may remain on leave related to an approved Workers’ Compensation claim.

Third, under the federal Family Medical Leave Act (FMLA), an eligible employee qualifies for 12 weeks of unpaid leave during any 12-month period.  While the FMLA provides that such leave may be unpaid, if the employee has any accrued paid leave available, the employee may elect, or the employer may require, that such paid leave be used during the FMLA leave period.  An employee who is on Worker’ Compensation leave also may be eligible for FMLA leave, if the work-related injury also constitutes a “serious health condition” under the FMLA.  An employer is permitted to count time that an employee is on Workers’ Compensation leave toward that employee’s 12-week entitlement under the FMLA, provided that the employer timely designates the leave as FMLA leave. 

Finally, pursuant to the Americans with Disabilities Act (ADA), an employee who has become “disabled” under the ADA may request an extension of unpaid leave after their FMLA leave expires as a reasonable accommodation.  Whether and to what extent such additional leave time is a “reasonable” accommodation must be determined on a case-by-case basis taking into consideration the employee’s job duties and the amount of additional leave being requested.  

These various laws stipulate only the minimum leave to which public school employees may be entitled; school districts are not prohibited from adopting policies granting more liberal leave benefits to employees.  However, such policies should be developed with caution, because they may create legal conflicts and potential liability.  For example, sick leave bank policies may be problematic because although school officials may view the granting of leave days from the bank as discretionary, employees may argue that they have a contractual right to the bank’s benefits.  Moreover, such policies may be difficult to administer consistently, given the challenge of defining and implementing terms like “catastrophic illness.”

To shield districts from liability for leave claims, school officials must keep in mind both the beginning and end of an employee’s leave.  In other words, the leave must be properly designated when it commences, and must be properly terminated when it expires.  On the front end, districts may choose to limit employees’ use of leave days granted under S.C. Code § 59-1-400 for reasons other than personal illness or injury. Board policy should specifically delineate the circumstances under which an employee’s use of such leave days will be approved. 

Employees requesting FMLA leave should be required to submit medical certification of the relevant serious health condition necessitating the leave, and should be timely informed in writing whenever a leave period is designated as FMLA leave.  A district’s failure to timely designate leave as being pursuant to the FMLA may result in an employee having access to additional days of FMLA leave that they otherwise would not have available.  To prevent potential abuses of FMLA leave, districts should provide a list of an employee’s primary job responsibilities when requesting medical certification of a serious health condition, and ask the certifying physician to designate whether the employee is capable of performing those responsibilities in light of the employee’s current medical condition.  Employees requesting leave beyond their FMLA leave entitlement should be required to submit medical documentation of their disability, and an explanation why additional leave is a reasonable accommodation. 

Concerning issues which can surface when an employee’s leave ends, state law provides that an employee using accrued sick leave may not be terminated from employment during a continuing sick leave of less than 91 days.  In the same vein, while it is permissible to dock an employee a leave day for improper use of leave, or for not following school policy when taking leave, docking an employee’s salary for such violations is discouraged, as doing so could subject a district to liability under the South Carolina Payment of Wages Act.  On the other hand, if a public school employee with a long-term illness has been out for 91 days, and the employee is not approved for additional leave at the end of that period, the employee in most cases may be terminated.

Ultimately, the key to preventing liability for decisions related to employee leave is to remember that numerous state and federal laws may intersect; to thoroughly review and follow the requirements of these various laws and school board policy; and to communicate clearly to employees the district’s rules and expectations regarding leave.

 

 

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A Refresher on Student Discipline for the New Year

01/09/19

It is hard to believe that half of the 2018-19 school year has already passed!  As students begin the second semester, we thought a refresher for school administrators and board members on the state and federal laws governing student discipline would be helpful.

District Student Discipline Policies/Code of Conduct

A district’s policies should clearly define when student conduct rises to the level of a disciplinary offense. The available disciplinary sanctions should be realistic and proportional to the nature of the misconduct. Policies specific to a particular type of misconduct, i.e. bullying or drug possession, should be consistent with and reference the district’s general student code of conduct.   Also, individual school handbooks addressing expectations for student conduct should be consistent with the district’s code.

Once a student has violated the code of conduct, the district must follow its policy when imposing punishment and ensure that the same punishment is applied to all students in similar circumstances. For example, if the district’s discipline policy states that a student may be suspended for up to five days for fighting, all of the students involved in a fight generally should receive the same punishment. Also, administrators should avoid charging students with a general offense such as “disturbing school.” Instead, the student and his/her parent/guardian should be given written notice of the specific conduct that violates district policy.

Discipline for Regular Education Students

Teachers should make students aware of their classroom rules and reinforce the district’s code of conduct when it becomes necessary.  Likewise, administrators should work with teachers and students to provide support. Discipline does not end in the classroom. Administrators should work with district transportation supervisors to make sure that bus drivers and assistants are properly trained to handle misconduct on school buses and to complete the necessary disciplinary referrals.

State law allows school administrators to suspend a student for up to ten school days for any one offense and for a total of no more than 30 days in a school year. The 30 day maximum includes both in-school and out-of-school suspensions.  Within three days after a student is suspended, the administration must schedule a conference to discuss the matter with the student’s parent/guardian. While the conference may actually occur after that three-day window if the parent/guardian informs the administration that they are unavailable to meet on the scheduled date, the administration must initially schedule the conference within that time period.

When expulsion is recommended, a hearing must be held within 15 days of written notice of the recommendation.  In many districts, a hearing officer, usually a current or retired district administrator, conducts that hearing.  A student’s parent/guardian must be given written notice of the reason for the expulsion recommendation as well as the opportunity to review the documentation that the administration has collected during its investigation. It is the administration’s responsibility to prove that the student violated district policy and that expulsion is warranted. In that regard, the administrator who attends the expulsion hearing should be familiar with the evidence supporting the expulsion recommendation. Evidence may include written statements as well as live witnesses. Live witnesses may be necessary where the student denies committing the misconduct and the administration thus must prove that the misconduct occurred. At the hearing, the student may be represented by legal counsel and present witnesses.  The student also has the right to question any witnesses presented by the administration. Following the hearing, a written decision must be issued within ten days. An expulsion decision may be appealed to the board of trustees and ultimately to the circuit court.

Discipline for Special Education Students

When a special education student violates the student code of conduct, the Individuals with Disabilities Education Act (IDEA) impacts the discipline process.  Under the IDEA, a district may suspend a special education student for a maximum of ten cumulative school days without providing the student with educational services. These ten days are often referred to as “free days.”  If a special education student is suspended or otherwise removed from school for more than ten cumulative days, the district must begin providing the student with educational services beginning on the 11th day of removal.

Disciplinary action that results in removal for more than ten consecutive days, such as a recommendation for expulsion, is considered a change of placement, requiring that the student’s IEP team conduct a manifestation determination to determine the relationship between the student’s misconduct and his/her disability before the school moves forward with the expulsion. Suspensions of more than ten cumulative days also may be a change in placement necessitating a manifestation determination.  As such, administrators should avoid suspending special education students when possible and consider implementing other disciplinary measures such as in-school suspensions. An in-school suspension generally does not count toward the ten day maximum, provided that the student continues to receive his/her special education and regular education services.

During a manifestation determination, the IEP team must consider the student’s IEP (including any existing Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP)), as well as teacher observations, and information shared by the parent, including any outside evaluations and/or medical diagnoses.  After reviewing that information, the IEP team must determine if the conduct was (1) caused by or had a direct and substantial relationship to the child’s disability, or (2) was the direct result of the district’s failure to implement the IEP.

If the team determines that either (1) or (2) is true, then the conduct is a manifestation of the student’s disability, and the student must be returned to the placement from which she/he was removed, unless the parent and the district agree to a change of placement.  If a FBA/BIP was not already in place, the IEP team also must conduct a FBA and develop a BIP designed to address the conduct that led to the suspension/expulsion.

Documentation

Documentation is key in proving student misconduct.  Documentation may include student statements, suspension/expulsion notices, information posted on social media, and teacher notes. As it relates to student statements, administrators should instruct student witnesses and/or the victim to write down exactly what they saw and heard.  Also, the administration should ask the student who is suspected of the misconduct to write a statement before the student is sent home from school. If a student is young or otherwise incapable of writing a detailed statement, the administrator may interview the student and write a statement based on the information provided by the student.  The student should then read the statement or have it read to them and sign to verify that it is accurate.

Should you have any questions about the topics discussed above or wish to have a presentation on these and other topics at an upcoming professional development, please do not hesitate to contact us.

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