Yesterday, the United States Supreme Court heard oral argument in its first case ever to address the discipline of students for speech occurring off-campus, on their own time, and online. The argument focused on what test should apply, the fate of political and religious speech under the proposed standards, whether schools can impose additional limits through extracurricular and athletic codes of conduct, and if the student in the specific case was too harshly disciplined for the speech in question. 

A majority of the Court’s Justices appeared prepared to overturn the lower court decision, which had held that the longstanding “substantial disruption” test does not apply to off-campus student speech. A majority also struggled with whether—and, if so, how—to refine or replace that test with something clearer. Indeed, most seemed to lean toward deciding the case narrowly, finding that even if the substantial disruption test applies, the school did not meet it in this case. Such a decision would fail to provide school officials long-sought-after guidance on the bounds of their jurisdiction to address off-campus speech. Even though, as one of the attorneys noted, the “Court has not had a Tinker decision since Tinker,” there is a real chance that schools may have to wait decades more to get guidance from the highest court on this significant issue. 
Continue Reading United States Supreme Court Hears Argument in Historic Student Speech Case 

We have been speculating for quite some time now about what the U.S. Supreme Court will do with Title IX after its decision last term in Bostock v. Clayton County, Georgia. The landmark Bostock decision held that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation and transgender status in the workplace. Although the Justices discussed Title IX in the oral argument and decision in Bostock, because of differences between employment laws and Title IX, many questions remained unanswered. A school district’s recent request that the Supreme Court hear a case involving transgender student access to bathroom facilities offers the high court a chance to answer many of the lingering, important questions. The case is one of the longest-running LGBTQ school cases in the country; the Supreme Court has even heard it once before. Here’s what you need to know now about the case and the request to the Supreme Court.

Continue Reading Supreme Court Asked to Give Schools Much-Needed Guidance on Title IX and Transgender Rights

In 2017, a high school cheerleader learned she had not made the varsity team and turned to Snapchat. She posted a picture of herself and a friend, middle fingers up, with the text “f— school f— softball f— cheer f— everything.” She was subsequently suspended from the Junior Varsity cheer team. Little did she know that her frustrated message would lead to the first U.S. Supreme Court case to address the limits of school discipline for student off-campus, online speech.

Yet, last Friday, the Supreme Court decided to hear the student’s challenge to the school’s discipline for her Snapchat post. I have been writing about the scope of K-12 schools’ authority to discipline students for off-campus, online misconduct for a long time. The Supreme Court has long refused to take on similar cases, despite pleas from administrators for better guidance on their rights. The result is that courts have reached different decisions in different parts of the country, making it even more challenging for schools to apply the standards correctly.

It is exciting to think that the Supreme Court may finally give direction to educators on this issue. Hopefully, they will answer important questions like whether the Tinker standard for substantial disruption applies to off-campus online misconduct and what, if any, nexus is required to impose discipline.

What should school leaders do about this issue now? School leaders in most jurisdictions should wait on the Court’s decision before making any changes to policies and procedures. Those of us who advise K-12 schools know how important the authority to discipline for off-campus, online speech can be to maintaining order in a school building and hope that the Supreme Court will agree. Until then, it is more important than ever to reach out to legal counsel for assistance in understanding what, if any, discipline can be imposed for off-campus, online incidents, including those involving Title IX. Keep reading this post for more insight and analysis of this important decision.
Continue Reading Supreme Court (Finally) Will Address School Discipline for Off-Campus, Online Student Speech

On September 8, 2020, an Education Dive article quoted me about two recent letters from the U.S. Department of Education’s Office for Civil Rights (OCR) on the impact on Title IX of this year’s landmark U.S. Supreme Court decision on sexual orientation discrimination in employment. OCR’s position: Title IX, like Title VII, now protects against discrimination based on sexual orientation and gender identity in schools. But that does not mean that schools can grant transgender students equal access to sex-segregated facilities or sports teams, says OCR. Media reports suggest the Department’s stated approaches are “totally at odds”–but are they? Here is a summary of the letters and why they seem pretty consistent, after all.
Continue Reading Is OCR’s New Approach to Trans Rights in Schools Really Inconsistent? Here’s Why It’s Not

It seems like all we talk about these days in the Title IX world is sexual harassment, as we scramble to implement new Title IX regulations that go into effect in August. Yet, this week brought significant news with respect to another side of Title IX—the rights of transgender students under the Federal law.

In a Letter of Impending Enforcement Action from May that came to light yesterday, the Department of Education’s Office for Civil Rights (OCR) threatened to take away federal funding from six Connecticut public high schools and the state’s athletics conference for allowing “biologically male” transgender female students to compete on girls athletic teams, which OCR found violates the Title IX rights of the cisgender female students on the teams. According to OCR, female students, unlike their male counterparts, were denied the ability to compete “on a level playing field” in athletics by not being allowed to compete against only cisgender female students.

We know that the Department has been pulling back on Title IX protections for transgender students for some time, so why is this news? Because as Title IX has become less useful for transgender advocates, they have turned to state laws (including in Illinois), which have been instrumental in the fight for access to facilities and activities based on gender identity in recent years.

Federal law generally preempts state law, however, so if Title IX prohibits providing equal access because of impacts on cisgender female students, schools may be required to disregard state law to avoid violating Title IX. Although the OCR decision appears to be limited to the realm of athletics, we have come to learn that with OCR these days, nothing is certain. This OCR letter, coupled with an imminent decision from the U.S. Supreme Court in the Title VII case Harris Funeral Homes v. Equal Employment Opportunity Commission, threaten to drastically upset the certainty for educational institutions regarding the laws governing transgender rights in schools.
Continue Reading More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux

The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students.
Continue Reading Can a Transgender Female Student Compete on a Girls’ Sports Team? Supreme Court Justices Address the Question in LGBT Employment Case