Students

By: Becky Batista, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On June 13, 2022, the New Jersey Appellate Division issued a published decision on an issue of first impression in C.V. v. Waterford Township Board of Education, where the Court addressed whether the New Jersey Law Against Discrimination (“LAD”) applies to claims arising from a sexual predator’s abuse against a young schoolgirl where such conduct was committed on a school bus. Based on the undisputed facts of this case, the Appellate Division concluded that the LAD did not apply because there was no evidence that gender motivated the assault.

This case concerned a five year old female student who was sexually assaulted by a bus aide who was assigned to the bus that took the student to and from school during the 2009-2010 school year. The bus aide was criminally charged, and he pled guilty to first-degree aggravated sexual assault. He was determined to be a compulsive and repetitive sex offender and was sentenced to a prison for sexual offenders. The parents of the student filed a civil complaint asserting negligence and violations of the LAD based on harassment and sexual abuse.

The trial court dismissed the parents’ LAD claim concluding that there was no evidence that the bus aide sexually abused the student because she was female, but instead he acted on compulsions. The court acknowledged that a LAD claim for conduct that occurred on a school bus may be permissible in a school setting but only under the right circumstances. The trial court further held that the “LAD was not intended to stretch to situations such as those present in this case where there is no discrimination and the bus aide would have abused any child on the bus.” The parents entered into settlement agreements resolving the negligence claim, but appealed the dismissal of the LAD claims to the Appellate Division.

The Appellate Division recognized that the LAD protects all persons including minors, that a school bus is “a place for public accommodation,” and that the LAD claim may be based on conduct that violates other statutes, including criminal statutes. However, the Appellate Division disagreed that the LAD automatically extends to a criminal sexual assault committed by a confirmed predator, regardless of the victim’s gender. The discrimination must be “because of” a protected characteristic, and in this case, the bus aide’s actions were the result of his pedophilia directed to all children.

The Appellate Division affirmed the trial court’s decision and noted that the LAD was simply not intended to provide a civil remedy for child sex abuse committed by pedophiles and where the victim failed to demonstrate that the conduct would not have occurred but for the student’s protected characteristic.

By: Gitika Kapoor, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

The Supreme Court of United States ruled on June 23, 2021 that a Pennsylvania public school district violated a student’s First Amendment rights by punishing her for posting a vulgar message on social media while off-campus and off school hours. In reaching this decision in Mahanoy Area School District v. Levy, the Court considered that the speech was made off campus and did not involve school infrastructure. Moreover, it did not cause substantial disruption because while it upset a few students and was a topic of discussion for a few days, it did not disrupt class or school activities.

The case concerned a high school student who resorted to vulgar language to express her dismay over not making the varsity cheerleading team. The speech at the heart of this matter was her post on the social media application Snapchat which showed her and a friend with middle fingers raised; bearing the caption: “F— school f— softball f— cheer f— everything.” The image was brought to the knowledge of cheerleading coaches by “visibly upset” students. The school authorities decided that the posts used profanity in connection with school extracurricular activity and suspended the student from the team for a year. The District Court found in favor of the student, which the Third Circuit affirmed in a broad ruling that the special characteristics which allow schools to regulate speech always disappear when a school regulates off campus speech.

The Supreme Court stepped away from the broad ruling by the Third Circuit, but affirmed that the student’s speech was protected under the First Amendment. The Court held that a “school’s regulatory interests remain significant in some off campus circumstances.” These include bullying, threats, failure to follow rules, writing of papers, use of computers, and participation in other online activities; and breach of school security devices. In deciding that the school could have not regulated the speech, the Court considered when, where and how she spoke. Because the speech was done using her personal cell phone, outside school, outside of school hours, and did not identify or target any member of the school community, the school’s interest in punishing her was diminished. The underlying rationale of the Court’s decision was that certain features of off campus speech make it wary of allowing schools to supervise off campus speech. First, parents are better suited to discipline students in off school settings. Second, if off campus speech is regulated, it could amount to round the clock surveillance of everything students say. Last, unpopular speech is worthy of protection.

While the Court did not foreclose the ability for public school districts to discipline students for off campus speech, it stated that the circumstances under this case did not give the school district the right to discipline the student’s speech. Unfortunately, the Court did not provide a bright line rule or set of factors regarding when public school district could discipline for off campus speech.

By: Sean P. Dugan, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 16, 2021, the U.S. Department of Education (USDOE) issued a notice of interpretation that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include discrimination based on sexual orientation and discrimination based on gender identity. The USDOE based its interpretation on the Bostock v. Clayton County case, which the United States Supreme Court decided on June 15, 2020.

In Bostock, the Court looked at three cases, two cases where employees were fired after they revealed that they are homosexual, and one where an employee was fired after she told her employee that she is transgender and intended to live and work as a woman. All employees brought suits under Title VII, alleging unlawful discrimination based on sex. Under Title VII, it is, “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”

The Court ruled that it is impossible to discriminate against a person for being homosexual or transgender without basing it on the person’s sex. The Court gave an example of two employees, both of whom are attracted to men, and otherwise identically the same, except that one is a man and one is a woman. If the employer fires the male because he is attracted to men, then the employer intentionally discriminated against him because of his sex.

The USDOE is using Title VII to interpret Title IX because the two statutes protect similar interests. Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” While Title VII uses the phrase, “because of … sex”, instead of Title IX’s, “on the basis of sex”, the Supreme Court has used these phrases interchangeably. Both statutes also specifically protect individuals against discrimination.

The USDOE also recognized that this interpretation of Title IX best suits the statute’s purpose, to guarantee equal opportunity and protect individuals from being harmed by sex discrimination. Many courts have ruled that treating students differently due to sexual orientation or gender identity can cause both emotional and physical injuries to the students. By prohibiting these discriminations, the statute will be able to better protect individuals from harm due to sex discrimination and ensure more equal opportunities for those in education programs or activities that receive federal funding.

This interpretation means that the USDOE’s Office for Civil Rights (OCR) will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance. As long as a complaint meets the jurisdictional and other legal requirements, the OCR will open an investigation for discrimination. Types of discrimination that are cause for an investigation include, “allegations of individuals being harassed, disciplines in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity.” Any complaint which leads to a finding of discrimination against one or more individuals because of their sexual orientation or gender identity will be resolved by addressing the specific compliance concerns or violations that were found.

Lauren E. Tedesco, Esq., a shareholder in the firm’s School Law Group, was recently interviewed by Special Ed Connection on the topic of banning parents from school campuses.

To view the PDF version of the article, please click here.

Lauren E. Tedesco, Esq., a shareholder in the firm’s School Law Group, was recently interviewed by Special Ed Connection on the topic of accommodations for students who are unable to wear face coverings.

To view the PDF version of the article, please click here.

On January 21, 2020, Governor Murphy signed legislation requiring that a meeting take place with a student who has experienced multiple suspensions or who may be subject to a proposed expulsion for the purpose of identifying any behavior or health difficulties experienced by the student and, where appropriate, to provide supportive interventions or referrals to school or community resources that may assist the student in addressing the identified difficulties.  The principal is charged with setting up the meeting as soon as practicable between the student and a school psychologist, counselor, social worker, student assistance coordinator or a member of the school’s intervention and referral services team.   

In certain situations, the required meeting may take place as soon as practicable following the student’s removal from the school.  These include circumstances in which the student’s immediate removal or suspension is necessitated under the Zero Tolerance for Guns Act (N.J.S.A. 18A:37-7 et seq.), the pupil committed an assault under N.J.S.A. 18A:37-2.1 or 2.2, or in any other instance in which the safety and security of other students or school staff required the student’s immediate removal from school. 

The Department of Education is charged with making available to school districts a list of current resources that may be of assistance as referral services for students. Resources may include the New Jersey MentalHealthCares information and referral service, and county or local programs that provide youth services for mental health or substance abuse.

The significance of this development is that it places a new obligation on school districts in connection with student suspensions/expulsions.  The law takes effect immediately.

In December 2019, the U.S. Department of Education (“USDOE”) and U.S. Department of Health and Human Services (“USDHHS”) jointly issued a 26-page document, providing updated guidance on the application of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, 34 C.F.R. Part 99, and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), see 45 C.F.R. Parts 160, 162, and 164 (the “HIPAA Rules”), and their application to student health records.  The updated guidance provides a basic overview of each of the two federal statutes, as well as 27 frequently asked questions (“FAQs”).  The new guidance document will serve as a useful tool for school districts and related service providers as a quick reference guide to the legal requirements and applicability of the FERPA and HIPAA statutes in various sets of circumstances.

For lawyers practicing in the area of school law, advising school districts and educational service providers of students’ rights under FERPA is an ongoing element of practice.  In general, FERPA is a federal law that provides various protections for the privacy of students’ “education records,” including the right of parents, legal guardians, and adult students to access their or their child’s education records, the right to seek to have these records amended, and the right to provide consent for the disclosure of personally identifiable information (“PII”) from these records, unless an exception to consent applies.  The statute contains a number of exceptions permitting disclosure absent parental consent, which are generally mirrored in New Jersey by state statutes and regulations (see N.J.A.C. 6A:32-7.1 et seq.).  

However, FERPA only applies to educational agencies and institutions that receive federal funds under any program administered by the U.S. Department of Education, including but not limited to public school districts and charter schools.  The term “educational agency or institution” generally refers to public elementary and secondary schools, school districts, and postsecondary institutions, including medical and other professional schools.  Private and religious schools at the elementary and secondary levels generally do not receive funds from the USDOE and are, therefore, not subject to FERPA.

The HIPAA statute, on the other hand, was enacted in 1996 in order to improve efficiency and establish a national standard for protecting the privacy and security of individually identifiable health information.  HIPAA applies to “covered entities,” which are health plans, health care clearinghouses, and health care providers that transmit health information in electronic form in connection with covered transactions.  See 45 C.F.R. § 160.103.  “Health care providers” include institutional providers of health or medical services, such as hospitals, as well as non-institutional providers, such as physicians, dentists, and other practitioners, along with any other person or organization that furnishes, bills, or is paid for health care in the normal course of business. “Covered transactions” are those for which the USDHHS has adopted a standard, such as health care claims submitted to a health plan.  Once a health care provider becomes a covered entity, the HIPAA Privacy Rule applies and requires the protection of individuals’ health records and other personal health information the entities maintain or transmit, known as protected health information (PHI), by requiring appropriate safeguards to protect privacy and setting limits and conditions on the uses and disclosures that may be made of such information without patient authorization.  The rule also gives patients certain rights with respect to their health information, including rights to examine and obtain a copy of their health records, and to request corrections.  Where the HIPAA Privacy Rule applies, it permits covered entities to disclose PHI without patient authorization in certain circumstances, including emergency or other situations.

While FERPA generally applies to all public school districts and charter schools, as most or all are recipients of federal funds, the new guidance helps provide clarity on those situations in which the HIPAA Privacy Rule may apply to educational institutions and intersect with FERPA.  In most cases, HIPAA does not apply to an elementary or secondary school for one of two reasons:  (1) either the school is not a HIPAA covered entity, or (2) the school is a HIPAA covered entity but maintains health information only on student records that are also “education records” under FERPA, and, therefore, are expressly not PHI covered by the HIPAA Privacy Rule.  However, the guidance explains that, in some circumstances, a private school would be required to comply with the HIPAA Privacy Rule when it is a HIPAA covered entity because it does not receive federal funds from USDOE.  These circumstances, will generally fall into one of the following categories:

• The school is not a HIPAA covered entity. The HIPAA Privacy Rule only applies to health plans, health care clearinghouses, and those health care providers that transmit health information electronically in connection with certain administrative and financial transactions (“covered transactions”). See 45 C.F.R. § 160.102.  Thus, even though a school employs school nurses, physicians, psychologists, or other health care providers, the school is not generally a HIPAA covered entity unless the providers engage in any of the covered transactions defined by regulation, such as billing a health plan electronically for their services.  According to the new guidance, “It is expected that most elementary and secondary schools fall into this category.”

• The school is a HIPAA covered entity but does not have PHI.  Even if a school is a covered entity and must comply with the HIPAA Transactions and Code Sets Rules, the school would not be required to comply with the HIPAA Privacy Rule if it only maintains health information in FERPA “education records.”  For example, a public high school might employ a health care provider that bills Medicaid electronically for services provided to a student under the Individuals with Disabilities Education Act (“IDEA”).  The school is a HIPAA covered entity because it engages in one of the covered transactions electronically, and, therefore, would be subject to the HIPAA transaction standard requirements. However, if the school provider maintains health information only in “education records” under FERPA, the school is not required to comply with the HIPAA Privacy Rule because the Privacy Rule explicitly excludes FERPA “education records.” See 45 CFR § 160.103.  Importantly, although the HIPAA Privacy Rule does not apply, FERPA’s and the IDEA’s privacy requirements do apply, including the requirement to obtain prior written parent or eligible student consent to disclose to Medicaid billing information about a service provided to a student.

• The school is a HIPAA covered entity and is not subject to FERPA.  Schools that are covered entities and are not subject to FERPA must comply with both the HIPAA transaction requirements and the HIPAA Privacy, Security, Breach Notification, and Enforcement Rules regarding any individually identifiable health information the school has about students and others to whom it provides health care. For example, if a private elementary or secondary school not subject to FERPA employs a physician who bills a health plan electronically for the care provided to students (thereby making the school a “covered entity”), the school must comply with the HIPAA Rules regarding the individually identifiable health information of its patients.

• Certain private school placements. Where a student is placed in a private school for the provision of Individualized Education Program (IEP) services on behalf of a school or school district subject to FERPA, the education records of the privately placed student maintained by the private school are subject both to FERPA and to the confidentiality requirements under the IDEA, which incorporate the provisions of FERPA, and not the HIPAA Privacy Rule.  USDOE is in the process of preparing a Notice of Proposed Rulemaking to amend the FERPA regulations to add this provision and will provide an opportunity for the public to comment on this proposed amendment.

The guidance continues with an explanation of 27 FAQs concerning the applicability of FERPA and HIPAA to various types of educational institutions.  The full text of the new guidance can be found at the following link: https://bit.ly/35LDctO

In a case successfully defended by Sanu Dev, Esq., the Hainesport Township Board of Education’s (“Board”) determination of harassment, intimidation, and bullying (“HIB”) was upheld by the New Jersey Commissioner of Education (“Commissioner”) on June 19, 2019. In the case captioned M.S. and N.S. o/b/o J.S. v. Hainesport Township Board of Education, the parents of J.S. appealed the Board’s decision finding that J.S. violated the Anti-Bullying Bill of Rights Act (“ABBRA”) and committed an act of HIB when J.S. slammed another student’s Chromebook, pulled on his earbuds, called him “weakling,” and commented on the student’s athletic ability, using the phrase, “you suck.”

As a result of J.S.’s conduct, the Board upheld the administration’s recommendation that J.S. receive a one-day, in-school suspension and his schedule be adjusted to limit interaction with the other student. J.S.’s parents appealed the Board’s determination, which was initially heard by an Administrative Law Judge (“ALJ”). Thereafter, the Commissioner reviewed the matter. The ALJ and Commissioner both agreed that the Board did not act in an arbitrary, capricious, or unreasonable manner when it determined that J.S.’s conduct met the criteria for HIB: the conduct was motivated by the other student’s distinguishing characteristic of being weak and bad at sports; the conduct disrupted or interfered with the orderly operations of the school or the rights of other students; and the conduct made the other student feel embarrassed.

While J.S.’s parents argued that the situation was conflict between the students rather than HIB, this argument was rejected. The evidence did not suggest a “back and forth” of taunting between J.S. and the other student.