NEW REGULATIONS FOR QUALIFIED INTERPRETERS AT IEP MEETINGS

 

February 18, 2021

 

Effective January 22, 2021, ISBE’s special education regulations were amended regarding interpreter requirements at IEP team meetings. Three separate sections of the regulations were amended regarding Parent Participation and Personnel Required to Be Qualified as they relate to interpreters. In sum, the amended regulations require as follows. 

 

1.     “Qualified Interpreter” Definitions (23 Ill. Admin. Code 226.75)

The amended regulations add new terms to the definitions in the special education regulations as follows:

 

 "Interpreter" means a person fluent in English and in the necessary language of the parent and who can accurately speak, read, and readily interpret the necessary second language, or a person who can accurately sign and read sign language.

 

"Interpretation services" means the verbal interpretation of English into another language and of the other language into English. “Interpretation services” may also include sight translations of written text into spoken word.

 

"Preferred Language" means a parent's or guardian's native language or any other language with which the parent or guardian requests interpretation services. "Preferred language" does not include artificial or constructed languages, including, but not limited to, Klingon, Dothraki, Elvish, or Esperanto.

 

"Qualified Interpreter" means a school staff member or other personnel who is:

 

  • bilingual and demonstrably qualified and competent to interpret;

 

  • trained in providing the interpretations requested and sufficiently knowledgeable in both language and of any specialized terminology needed; and

 

  • trained in ethics of interpretation.

 

2.     Parents’ Participation (23 Ill. Admin. Code 226.530)

The Parent Participation special education regulations were amended to require school districts to take whatever action is necessary to facilitate a parent's understanding of, and participation in, the proceedings at a meeting, including arranging and paying for a qualified interpreter for parents whose native language is other than English. The amended regulations permit school districts to use outside vendors, including telephonic interpreters, in the event that a qualified interpreter is not available. Further, school districts must now provide annually to all parents of children with disabilities and in each Notice of Conference the information discussed below.  

 

Notice of Conference

Each school district must provide annually to all parents of children with disabilities and in each Notice of Conference the following information:

 

  • Notice to all parents of children eligible for an individualized education program (IEP) about the availability of interpretation services at IEP team meetings;

 

  • An explanation of how parents can request an interpreter;

 

  • Notice that a parent has the right to request that the interpreter provided by the school district service no role in the IEP meeting other than as an interpreter, and that the school district will make reasonable efforts to fulfill this request; and

 

  • A point of contact for any question or complaints about interpretation services.

 

Recording Obligations

The amended regulations also provide for new recording obligations. School districts must record the following information:

 

  • Whether a parent requested an interpreter, had previously requested interpretation services, or had otherwise indicated that an interpreter was necessary to ensure meaningful parental involvement in the IEP meeting;

 

  • The language for interpretation;

 

  • Whether a qualified interpreter was provided for each IEP meeting; and



  • Whether a parent requested that the interpreter serve no other role in the IEP meeting and, if so, whether the school district granted that request.

 

3.     Personnel Required to be Qualified (23 Ill. Admin. Code 226.800)

The Personnel Required to be Qualified special education regulations were also amended to require “Qualified Interpreters” at IEP meetings. Qualified interpreters must meet all employment eligibility requirements of the school district and must meet certain standards and training obligations.   

 

Qualified Interpreter Standards

A qualified interpreter must meet the following obligations:

  • Demonstrate proficiency in English and the target language by passing a State-approved language proficiency test that includes the following domains: listening, speaking, and reading (if the target language exists in written form).

 

  • Exemptions for the English language proficiency test are available for those who possess a post-secondary degree in which the official language of instruction is English.

 

  •   For a target language proficiency test exemption, the individual must:

 

  • Possess a post-secondary degree in which the official language of instruction is the target language; or

 

  • Possess the State Seal of Biliteracy with a minimum score of Advanced Low in the target language; or

 

  • Receive a score of 4 or higher on the AP language test in the target language; or

 

  • Currently possess, or has possessed, an educator license with stipulations endorsed for transitional bilingual educator or a professional educator license endorsed in LBSII/Bilingual Special Education Specialist or bilingual education; or

 

  • Currently possess an Administrative Office of the Illinois Courts Court Interpreter Certification, a Certified Medical Interpreter Certification, or an Advanced Proficiency Level Interpreter License under the Interpreter for the Deaf Licensure Act of 2007, and the individual has completed additional coursework on special education terminology.

 

  • Where an exam does not yet exist for the target language, a reliable alternative assessment or documentation of proficiency in that language must be established by ISBE if it is not feasible for ISBE to otherwise offer a test in that language within a reasonable amount of time. 

 

Training Requirements

The amended regulations also create new training requirements. Qualified interpreters must:

 

  • Complete at least 6 hours of training on special education terminology and protocol unless the individual already holds special education licenses, endorsements, or approvals.

 

  • Complete at least 9 hours of training that includes: interpretation standards of practice, ethics and confidentiality; the role of the interpreter and role boundaries; and respect, impartiality, professionalism, cultural competence and responsiveness, and advocacy for communication and cultural needs and videos demonstrating proper and improper interpretation techniques on interpreting in and out of English.

 

  • After completion of the required training, individuals must: (1) successfully complete, with a score of 80% or higher, a written examination to demonstrate knowledge of special education terminology and protocol; interpretation standards and techniques; and interpretation ethics; and (2) successfully complete an oral examination, with a score of 70% or higher, to demonstrate proficiency in interpreting in and out of English, through consecutive or simultaneous interpreting; and sight translation.

 

  • To maintain the designation of “Qualified Interpreter,” an individual must at least once every two years, participate in at least six hours of ongoing professional development related to interpretation in the following categories: 1) confidentiality; 2) accuracy; 3) impartiality; 4) interpreter ethics and professionalism; 5) cultural awareness; 6) special education processes; 7) special education vocabulary; and 8) language acquisition.

 

4.    Guidance

Yesterday ISBE sent a communication to Superintendents, Bilingual Directors, and Special Education Directors, acknowledging that there is no official training or certification process yet, as ISBE is in the process of releasing a Request for Sealed Proposals (“RFSP”) for a training entity. As part of the RFSP, the training entity will also establish a registry of qualified interpreters willing to contract with districts in need of securing a qualified interpreter. In the meantime, ISBE is encouraging districts to continue to use interpreters that are “bilingual, demonstrably qualified, and capable of interpreting appropriately, with preference for those who have knowledge of special education terminology and processes.” Further, pursuant to the new regulations and as set forth above, school districts may use outside vendors, including telephonic interpreters, in the event a qualified interpreter is not available.

 

We anticipate that ISBE will provide additional guidance in the future to address, for example, the types of acceptable alternate documentation of proficiency for target languages and a timeline to satisfy the requirements. ISBE is currently in the process of updating the Notification of Conference form to comply with the new regulations and will send it out soon. In the meantime, school districts should move forward on compliance with the other notice and record keeping requirements set forth in Paragraph No. 2 above. It is important to notify staff of the new requirements and consider the best way to ensure all required information regarding requests for, and the provision of, interpreting services is documented and maintained. Districts will also need to consider how to provide the required annual notice to parents related to qualified interpreters such as on a district’s website and in its student handbook. Last, keep in mind that the new requirements may have bargaining implications for staff members who will serve as “qualified interpreters” including issues relating to payment for, and the provision of, training. We will keep you apprised of any new developments. If you have any questions regarding the amended regulations relating to interpreters, please contact Darcee Williams at dwilliams@edlawyer.com or Jared Costanzo at jcostanzo@edlawyer.com.

 

Tags – Students: Students

 

US DOE RELEASES GUIDANCE ON

PROTECTION OF PUPIL RIGHTS AMENDMENT

 

January 27, 2021

 

As the delivery of student instruction and services continues to transition to online-based programming, especially as accelerated by remote learning due to the COVID-19 pandemic, school districts must be certain to adhere to student privacy and transparency laws. The US Department of Education (“US DOE”) recently released guidance on the Protection of Pupil Rights Amendment (“PPRA”), which is a federal law that provides rights to parents of students regarding surveys, the collection and use of information for marketing purposes, and some physical exams. Before surveying students or collecting student information, schools must ensure they are complying with the PPRA.



Among the requirements of the PPRA, districts must adopt policies to address the protection of student privacy and parents’ rights under the Act and to provide annual notice of the PPRA policies. IASB’s PRESS policy service has already developed policies and sample notice language that satisfy these requirements, see section 7:15, Student and Family Privacy Rights, and section 6:170-AP2, Notice to Parents Required by Elementary and Secondary Education Act, McKinney-Vento Homeless Assistance Act, and Protection of Pupil Rights Act.  

 

The PPRA also requires parents/guardians to be informed before students are surveyed about:

 

  • Political affiliations or beliefs of the student or student’s parent; 

  • Mental or psychological problems of the student or student’s family; 

  • Sex behavior or attitudes; 

  • Illegal, anti-social, self-incriminating, or demeaning behavior; 

  • Critical appraisals of others with whom respondents have close family relationships; 

  • Legally recognized privileged or analogous relationships, such as with lawyers, doctors, or ministers; 

  • Religious practices, affiliations, or beliefs of the student or student’s parent; or 

  • Income, other than as required by law to determine program eligibility. 

 

If your school anticipates surveying students on one or more of the identified topics above, parents/guardians have the right to receive notice, inspect upon request, and be given an opportunity to opt their student out of participation. Note that if the survey is funded in whole or in part by the US DOE, then schools must obtain prior parental consent, and also provide notice and an opportunity to inspect the survey. This notice to parents/guardians must include the specific/approximate dates when the survey will be conducted. Schools must also notify parents/guardians of the right to inspect any instructional materials used in connection with any survey that covers one or more of the topics above.

 

If you have any questions about the PPRA, or would like assistance in drafting the written notices required under the PPRA, please contact your HPF attorneys.

 

TAGS – Students: Privacy

USDOE Provides Supplemental Guidance on Serving Children with Disabilities

 

March 24, 2020

 

On Saturday, March 21, 2020, the USDOE issued its Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (“Fact Sheet”).  The Fact Sheet supplements the following guidance previously issued by the USDOE, the Office of Civil Rights (OCR) and the Office for Special Education and Rehabilitative Services (OSERS): 

 

 

The Fact Sheet generally addresses concerns regarding distance instruction and timelines.  Timelines are not extended though the fact sheet highlights existing options and flexibility within the IDEA.  The guidance set forth in the Fact Sheet is summarized below: 

 

Distance Instruction

The Fact Sheet clarifies that: (1) virtual or online education (distance instruction), may be used to provide FAPE; (2) many disability related modifications and services may be provided online; and (3) where technology is a barrier to access, alternate access to the curriculum may be provided. 

 

The Fact Sheet emphasizes that FAPE may include “special education and related services provided through distance instruction provided virtually, online, or telephonically.”  “To be clear:  ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.” 

 

However, recognizing that schools may not be able to provide all services in the same manner they are typically provided, many disability related modifications and services may be effectively provided online such as extended time, videos with captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing. 

 

Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum such as instructional packets, projects and written assignments.

 

IDEA Timelines

Little to no relief from federal timelines is provided, though existing flexibility in the IDEA allows for some extensions.  School districts are encouraged to work with parents to reach mutually agreeable extensions of time as appropriate. 

 

State Complaints

If the parties do not mutually agree to extend the State complaint resolution timeline, the State may extend the 60-day timeline for complaint resolution if a large number of ISBE staff are unavailable or absent for an extended period of time. 

 

Due Process Hearings

The 30-day resolution period may be adjusted by mutual agreement because of delay related to COVID-19 and hearing officers may grant specific extensions of time at either party’s request. 

 

Initial IEPs and Annual Review Timelines

There is no relief from timelines for developing an initial IEP or for holding annual reviews.  However, the Fact Sheet reiterates that school teams and parents are encouraged to work collaboratively and creatively to meet IEP timeline requirements and meetings may be held by video and teleconferencing.  The Fact Sheet also reminds that modifications to a child’s current IEP may be made by written amendment. 

  

Reevaluations

The timeline to hold a triennial reevaluation is unchanged.  However, schools are reminded that parents and schools may agree that a reevaluation is unnecessary and that any reevaluation may be conducted through a review of existing data without the need for a meeting or parental consent as long as additional assessments are not needed. 

 

Compensatory Services

The Fact Sheet provides that, “Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”

 

If you have any compliance questions, or questions relating to servicing your special education population, please do not hesitate to contact us.  We are here to support you during these uncertain times. 

 

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RECENT STATE SUPREME COURT CASE THAT CAN IMPACT SCHOOL DISTRICTS

By John Fester and Law Clerk Jared Costanzo

 February 22, 2019

On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) without tangible harm. This is a departure from prior court precedent, which held that “standing” typically requires a plaintiff to plead actual harm or damage as part of their request for court intervention. For example, in Spokeo, Inc. v. Robins, the US Supreme Court held that bare allegations of statutory violation are not enough to satisfy standing requirements, rather concrete injury-in-fact had to be established.

BIPA was enacted in 2008 for the purpose of regulating the “collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” While BIPA generally covers only private entities, private entities that work with public school districts are subject to the Act. BIPA is enforced through private rights of action, enabling future litigants to sue entities for violating BIPA. Under BIPA, plaintiffs could potentially recover $1,000 or more per violation from entities that negligently violate the Act, or $5,000 per violation for intentional or reckless violations of the Act. Vendor contracts should be reviewed to ensure this potential liability is not shifted to the school district.

In Rosenbach, the plaintiff was fingerprinted in connection with his purchase of a season pass for Six Flags Theme Park. Six Flags sold repeat-entry passes since 2014, and used a fingerprinting process when issuing those passes. The plaintiff alleged that Six Flags had collected her minor son’s fingerprint during a school fieldtrip, without first informing her or her son of the purpose of the collection or the length of time the biometric data would be maintained. Neither the mother or teenage son signed any written release regarding the collection of fingerprints.

Six Flags moved to dismiss the lawsuit, asserting that while the theme park did collect the bio-scan fingerprint, the plaintiff had not suffered an actual or threatened injury and therefore lacked standing to sue. The Illinois Supreme Court held that injury or adverse effect does not need to be alleged for standing purposes. Simply put, the violation of BIPA, in itself, is sufficient to support plaintiff’s statutory cause of action. The plaintiff is not required to suffer from tangible harm to file suit.

The court’s ruling in Rosenbach will likely impact school districts. In Illinois, some schools collect biometric data to enable students to pay for lunch using just their fingerprint. To limit the risk under BIPA, school districts should include in third party contracts language that requires any private entity that intends to collect student biometric data to first obtain written consent and to provide notice to the legal guardians of students. School districts should also note the Illinois school code requires schools to obtain written consent from the student’s parent or guardian prior to the collection of biometric data. Further, all student biometric data must be destroyed upon 30 days after the discontinuation of use.

Should your school district need assistance in dealing with any of these issues, we welcome you to contact your attorney at Scariano, Himes and Petrarca, Chtd.

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Scariano Himes and Petrarca

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RECENT STATE SUPREME COURT CASE THAT CAN IMPACT SCHOOL DISTRICTS

By John Fester and Law Clerk Jared Costanzo

 February 22, 2019

 On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) without tangible harm. This is a departure from prior court precedent, which held that “standing” typically requires a plaintiff to plead actual harm or damage as part of their request for court intervention. For example, in Spokeo, Inc. v. Robins, the US Supreme Court held that bare allegations of statutory violation are not enough to satisfy standing requirements, rather concrete injury-in-fact had to be established.

BIPA was enacted in 2008 for the purpose of regulating the “collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” While BIPA generally covers only private entities, private entities that work with public school districts are subject to the Act. BIPA is enforced through private rights of action, enabling future litigants to sue entities for violating BIPA. Under BIPA, plaintiffs could potentially recover $1,000 or more per violation from entities that negligently violate the Act, or $5,000 per violation for intentional or reckless violations of the Act. Vendor contracts should be reviewed to ensure this potential liability is not shifted to the school district.

In Rosenbach, the plaintiff was fingerprinted in connection with his purchase of a season pass for Six Flags Theme Park. Six Flags sold repeat-entry passes since 2014, and used a fingerprinting process when issuing those passes. The plaintiff alleged that Six Flags had collected her minor son’s fingerprint during a school fieldtrip, without first informing her or her son of the purpose of the collection or the length of time the biometric data would be maintained. Neither the mother or teenage son signed any written release regarding the collection of fingerprints.

Six Flags moved to dismiss the lawsuit, asserting that while the theme park did collect the bio-scan fingerprint, the plaintiff had not suffered an actual or threatened injury and therefore lacked standing to sue. The Illinois Supreme Court held that injury or adverse effect does not need to be alleged for standing purposes. Simply put, the violation of BIPA, in itself, is sufficient to support plaintiff’s statutory cause of action. The plaintiff is not required to suffer from tangible harm to file suit.

The court’s ruling in Rosenbach will likely impact school districts. In Illinois, some schools collect biometric data to enable students to pay for lunch using just their fingerprint. To limit the risk under BIPA, school districts should include in third party contracts language that requires any private entity that intends to collect student biometric data to first obtain written consent and to provide notice to the legal guardians of students. School districts should also note the Illinois school code requires schools to obtain written consent from the student’s parent or guardian prior to the collection of biometric data. Further, all student biometric data must be destroyed upon 30 days after the discontinuation of use.

Should your school district need assistance in dealing with any of these issues, we welcome you to contact your attorney at Scariano, Himes and Petrarca, Chtd.

  Tags:  Students

Scariano Himes and Petrarca

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SEVENTH CIRCUIT COURT OF APPEALS UPHOLDS PRELIMINARY INJUNCTION AND RULES AGAINST SCHOOL DISTRICT IN LOCAL TRANSGENDER CASE

By James Petrungaro & John Fester

June 2, 2017

             The federal appeals court having jurisdiction over Illinois schools released a unanimous decision by a three-judge panel this week that sends a strong message to school districts about how they should respond to transgender student bathroom access requests. In Whitaker v. Kenosha Unified School District No 1 Board of Education, the Seventh Circuit Court of Appeals ruled in favor of a student’s request for the issuance of a preliminary injunction, requiring the District to allow the transgender male student to use the boys’ restroom, pending a full review of the case at a later date. 

 

            At issue in the case is the school district’s decision (which the Court referred to as a “policy” despite the absence of a formal written policy on the issue), to deny the transgender male student access to the boys’ restroom. The school district told the student and his parent that it would allow the access only if the student could provide unspecified “legal” and “medical” certifications of being a boy, including proof of having undergone a complete surgical transition (which is not legally allowed for minors).  

 

          Background.    A basic understanding of the facts of the case are necessary to understand the Court’s decision. As of the ruling, the student was a 17-year old senior named “Ash” who was on the verge of graduation. During his freshman year of high school, Ash began to openly identify as a male, though he was born anatomically female. As a sophomore, he asked that teachers address him as a male. As part of his public transitioning to being a male, he saw a therapist and was diagnosed with Gender Dysphoria and in the summer before his senior year, began hormone replacement therapy. His public transitioning was largely without hostility or disruption and the record indicates that he was generally accepted by his high school community. 

 

            Toward the end of his sophomore year, Ash asked his school counselor for permission to use the boys’ restroom. The school district denied this request and assigned him to a gender-neutral restroom in the school’s main office, where he was the only student allowed to use that restroom. Ash initially reacted by restricting the intake of liquids to lessen his need to use the restroom and to combat the attention he thought would be drawn to the situation. But that approach aggravated a medical condition, which subjected him to an increased risk of fainting and seizures. During his junior year, Ash was also provided access to two other gender neutral and single-user restrooms. However, Ash used the boys’ restroom, notably without any incidents, disruptions or complaints to the district’s administration, until one day a teacher observed him and reported him to the administration. During the remainder of his junior year, Ash continued to use the boys’ restroom and was counseled several times about violating the District’s directives. 

 

            Heading into his senior year, Ash filed a federal lawsuit and requested a preliminary injunction to halt the school district’s “policy” prohibiting his use of the boys’ restroom. Ash alleged violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment. For his Title IX claim, Ash argued that he was being unjustifiably discriminated against based upon the basis of his “sex.” For the Equal Protection claim, Ash argued that as a transgendered person, he is a member of a protected classification of individuals and his denial of equal access to the boys restroom was not justified by the school district. 

 

            In granting Ash’s preliminary injunction, the Court made quick work of finding that the school district’s policy decision subjected Ash to irreparable harm (a mix of physical and emotional injuries) and that Ash lacked other adequate remedies – both prerequisites of an injunction. The bulk of the Court’s analysis turned on whether Ash had viable claims under Title IX of the Civil Rights act of 1964 or the Equal Protection Clause of the U.S. Constitution. 

 

          Title IX.           The ultimate question in the Title IX claim was whether Congress intended to include transgender students in the statute’s protections against “sex” discrimination. The U.S. Supreme Court has not decided that question, leaving the Seventh Circuit to look to its own precedent and that of other circuits. Recognizing the lack of precedent in the student context and Title IX, the Court relied on its decisions in the employment context under Title VII.  

 

        First, the Seventh Circuit recognized that in 1984, it ruled in a transgender employment discrimination case that the definition of “sex” should be “given a narrow, traditional interpretation, which would…exclude transsexuals.” But the Court then acknowledged that the U.S. Supreme Court has held that Title VII does protect against “sex stereotyping,” including workplace policies that require employees to conform to certain standards of femininity or masculinity (e.g., sex-based dress codes). This is where the Court’s decision marked a sharp turn in transgender jurisprudence. Under a definition of “sex” that includes “sex stereotyping,” the Court ruled that Title IX does protect against discrimination of transgendered students, stating: “By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”  

 

            Equal Protection.        The Court then turned its attention to the Equal Protection claim and centered its analysis on whether the restroom decision was an intentional or arbitrary discriminatory decision by the school district. In an equal protection analysis, courts must first determine whether the discriminatory act affected a “protected class.” If so, the judicial scrutiny of the decision becomes elevated and less deference is given to the policymaker. Here, the Court held that the school’s decision was in fact based on “sex,” thus prompting “heightened scrutiny.” Under a “heightened scrutiny” standard, precedent requires the school district to prove that its policy is both “genuine” and “exceedingly persuasive” (as opposed to the lesser standard of merely being “rational”). At every turn, the Court rejected the school district’s claimed justifications, finding:  

 

The district does not treat all boys and girls the same with its segregated restroom policy (as claimed by the school district) because it treated Ash differently than any other student by assigning him to single-user facilities;

 

All privacy arguments raised by the school district for the other students sharing the restroom with Ash were unfounded conjecture (there were no complaints or protests from students);

 

Identifying an individual’s “sex” is not a black and white exercise that can be determined even by reliance on a birth certificate since that marker “does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.”

 

Restrooms in general are not a purely private place and any student wanting privacy can use a stall.

 

Notably, the Court wrote:  

 

A transgender student’s presence in the restroom provides no more of a risk to other student’s privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or classmates… [I]f the School District’s concern is that a child will be in the bathroom with another child who does not look anatomically the same, then it would seem that separate bathrooms also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically.  

 

Impact on Legal Landscape.   It is first noteworthy that the posture of the case makes the Court’s decision technically less authoritative. The decision is “preliminary” and is officially just a prediction by the Court of how it will rule when the case runs its full course. The Kenosha School District will be given an opportunity put on a more exhaustive factual demonstration to persuade the Court to decide differently before it issues a final decision on the underlying merits. If the parties presented a fairly complete factual record at the time of the preliminary injunction hearing, however, the Court’s decision can reasonably be expected to stand. The practical effect of the decision cannot be understated, however. The Court’s reasoning on the rudimentary “legal” questions of whether transgender students are entitled to the legal protections of Title IX and the Equal Protection Clause are not expected to change absent reversal by the U.S. Supreme Court. Therefore, if a school district denies a transgender student use of the bathroom associated with his or her gender identity, or requires use of a single-occupancy bathroom, this case will almost certainly be followed by federal district judges should the student seek legal relief. School districts can expect transgender advocacy groups to widely publicize this decision, so you may see an increase in bathroom requests from transgender students, or an increase in transgender students no longer “asking” for what may now be considered a right. 

 

            This case is different than the Fourth Circuit’s decision in Grimm v. Gloucester County School Board. In Grimm, the Fourth Circuit’s transgender-friendly decision was largely rooted in administrative guidance issued by the U.S. Department of Education’s Office of Civil Rights (OCR) under the Obama Administration. After that case worked its way to the U.S. Supreme Court, OCR (then under the Trump Administration) rescinded its guidance and the U.S. Supreme Court remanded the case back down for further proceedings. This Seventh Circuit decision, however, does not rely on OCR’s position – in fact it makes no mention of OCR or the Grimm case at all.   

 

            The transgender student access issue is a politically charged and emotional matter that only in the last few years has come to the forefront of the school law landscape. Unless and until the Seventh Circuit reverses itself or is reversed by the U.S. Supreme Court, its decision can practically be treated as controlling for school districts in Illinois, Indiana and Wisconsin. Scariano, Himes and Petrarca is prepared to assist you in reviewing your transgender student practices and procedures in light of this significant decision.

 

 

Scariano Himes and Petrarca

 

Discrimination, Title IX, Privacy

 

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