You Have Questions

1. You Have Questions And I (Better) Have Answers!

2. Kevin SuttonAttorney, Lusk Albertson@LuskAlbertson / @SpartanSuttonwww.LuskAlbertson.com/Lapeer

3. Roadmap • Service Animals • Legal Custody Documentation • LGBTQ Student Issues • Marijuana, Tobacco, and Vaping • Restorative Practices • Cyberbullying • Title IX / Sexual Harassment • Question Time!

4. Service Animals It’s Likely Not What You Think

5. Hypothetical • Student with no prior history of disability, special education services, or issues of any kind • Honor Roll student, AP classes, etc. • Parent appears at school with student on Monday morning • Toting a Jack Russell Terrier, which they claim is a service animal • Say animal is needed for anxiety • Want to go to class NOW What do you do?

6. What is a Service Animal? • Defined • Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person's disability. • “Do Work or Perform Tasks” • The dog must be trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog that is trained to alert her when her blood sugar reaches high or low levels. A person with depression may have a dog that is trained to remind him to take his medication. Or, a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure.

7. What is a Service Animal? • What About Emotional Support, Therapy, Comfort Animals? • No. These animals provide comfort just by being with a person. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA. • What about Dogs that Calm Someone Having an Anxiety Attack? • Maybe. ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA. • Do Service Animals Have to be Professionally-Trained? • No • Do Service Animals Have to Wear a Special Harness, Vest, or Patch? • No (Michigan has a voluntary identification card and patch available for a service animal upon request through MDCR)

8. Service Animal Verification • What Questions Can be Asked? • In situations where it is not obvious that the dog is a service animal, staff may ask only two specific questions: • (1) Is the dog a service animal required because of a disability? • (2) What work or task has the dog been trained to perform? • Staff are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability

9. Typical Concerns • Can you require a student with a service dog to leash the animal? • Yes. Under the ADA, a service dog must be leashed, harnessed, or tethered, unless the student’s disability prevents use of the restraint OR the service dog is unable to perform its task because of the restraint. • Do you have to allow a service dog if it is uncontrollable or not housebroken? • No. Under the ADA, the student is only entitled to have the service dog there if the dog is housebroken and the student can control it. • What about dog bites? • Government Tort Liability Act (GTLA) MCL 691.1401 et seq.

10. Service Animal Cases • Riley v Sch Admin Unit [DNH (New Hampshire) (2015)] • School districts are not required to care for or supervise a service animal – know what is care/supervision and what is a reasonable accommodation. • “A public entity is not responsible for the care or supervision of a service animal.” 28 C.F.R. § 35.136. • Alboniga v Sch Bd of Broward Co [87 F Supp 3d 1319 (SD Fla 2015)] • If the accommodation requested is for the benefit of the student, it is generally required under the ADA. If the accommodation is for the benefit of the service animal, it is generally not required under the ADA.

11. Service Animals • Are there any other circumstances where you may prevent a student from having a service dog? • Yes, if the presence of the dog will “fundamentally alter” the goods, services, programs, or activities provided • This is not an easy bar to meet – the ADA favors accommodation • Example: School district sets up separate room for students with dog allergies to eat lunch. • This would probably be permitted under the ADA. Having a service dog present would fundamentally alter the nature of the room. • Example: School district sets up separate room for student with service dogs to eat lunch. • Not permitted under the ADA

12. Resources • Federal = • https://www.ada.gov/regs2010/service_animal_qa.html • State = • https://www.michigan.gov/documents/mdcr/FAQs-4-15-16-Final_521982_7.pdf • State of Michigan ADA Compliance Office (517-241-1344) • MDCR-ServiceAnimals@Michigan.Gov

13. HANDLING Legal Documentation What Do I Do With This Subpoena or Custody Order?

14. Custody Orders • Court orders, usually in divorce cases, that describe parental rights regarding their children • Issue #1 – What have they really given you? • Issue #2 – What to do with it? • Seems straightforward (i.e., “Don’t I just follow the order?”) but can be a legal minefield. Some possible issues include: • Right to access student records under FERPA • Right to determine medical decisions for student • Right to determine student’s activities at school, including extracurriculars • Who can pick up or drop off a student, and when • Legal documents can be difficult to interpret or apply (e.g., vague, sounds good in theory but creates unforeseen problems, etc.)

15. Custody Orders • When presented with legal custody documentation, do not talk to the parent or another party and do not try to decipher – not your job • Contact legal counsel for advice about interpreting and applying the order • Speak with parent or relevant party only after all issues have been resolved with legal counsel and/or guidance given

16. Subpoenas • Legal document compelling production of documents or appearance for court hearing • Often served to the school • Deadlines / dates outlined in subpoena • Often accompanied by a letter from issuing attorney, instructing you to call • DON’T DO IT!!! • Subpoenas should be sent to Principal/central office • Options exist … REALLY • Legal counsel maneuvers

17. LGBTq student rights Navigating the Legal Minefield

18. Overview • Obama-Era Standards • May 13, 2016 DCL • Definitive, Unequivocal Statement • Names, Pronouns, Restrooms, Locker Rooms, Overnight Stays, Athletics, Amendment of Student Records • “Consistent with their Gender Identity …” • Trump-Era Changes • DCL Litigation - Reverse Field • February 22, 2017 Guidance • Roll-Back May 2016 DCL • Closing on a Positive Note • Where Are We Now?

19. Legal Authority • Whitaker v. Kenosha Unified School District • Student made public his identity as a transgender boy, no disruption among peers and teachers • School district violated Title IX when it denied a transgender student the right to use restroom facilities in accordance with his gender identity • Discrimination on the basis of transgender status is discrimination on the basis of sex – constitutes sex stereotyping • Citation: 858 F3d 1034 (CA 7, 2017) • January 2018 – Case Settled for $800K

20. State BOE Statement & Guidanceon Safe and Supportive Learning Environments for LGBTQ Students • Initial Draft Released Feb 2016 • Public Comment • Extended due to Volume • 13,000+ Comments Received • Vote Pushed to September • Revised Guidance • Adopted September 2016 • Implication … • Not a legal mandate • Just guidance, suggestions Topics Covered: • Names/pronouns • Student records • Restrooms • Locker rooms • PE classes • Dress Code • Athletics

21. State BOE Statement & Guidance • State BOE Policy Statement  “[A] school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.” • Provide resources to students • Designate a building-level staff member who is conversant in issues related to sexual orientation, gender identity, and gender expression

22. LGBTQ Rights: Enter the MCRC • Who? • Interpretive Statement 2018-1 • Whereas, Whereas, Whereas … • “The Michigan Civil Rights Commission hereby resolves, and adopts as Interpretive Statement 2018-1, that, as used in the Elliott Larsen Civil Rights Act ‘discrimination because of... sex' includes discrimination because of gender identity and discrimination because of sexual orientation.” • “[T]hat the Department of Civil Rights shall therefore process all complaints alleging discrimination on account of gender identity and sexual orientation as complaints of discrimination because of sex, and therefore discrimination prohibited under the Elliott Larsen Civil Rights Act.” • AG Response … MCRC Response … New AG Dana Nessel likely to change course … • Practical Impact? Think Students and Employees

23. LGBTQ Issues on the Horizon • The U.S. Supreme Court will hear arguments in three LGBTQ Title VII cases in Fall 2019: Altitude Express v Zarda;Bostock v Clayton County; and RG & GR Harris Funeral Homes v EEOC • In RG & GR Harris Funeral Homes, a funeral home employer terminated its transgender employee after the employee asked to dress as woman. The employer stated allowing the employee to dress as a woman would “violate God’s commands.” • These cases will likely decide whether Title VII protects sexual orientation and transgender status

24. Scenarios • Name on Diploma • Bathroom Usage • Overnight Field Trip • Prom Dress • Others?

25. Marijuana, Tobacco, and Vaping Believe It or Not, Business As Usual

26. Marijuana, Tobacco, and Vaping • Recreational marijuana is legal in Michigan, but nothing has changed for schools and students • Treat student use of marijuana the same as tobacco use and vaping, i.e., prohibited on school grounds. It is a civil infraction for a student to possess marijuana, as students are below the legal age limit. • Marijuana is still illegal federally, and the Michigan Medical Marihuana Act does not allow possession or use of medical marijuana on school property • Maintain an absolute ban on marijuana, tobacco, and vaping on school grounds

27. Policy Samples • Model Policy Language  • Generally. The use of all tobacco products on School District property is prohibited. For the purposes of this policy, School District property includes all school buildings, athletic fields, transportation vehicles, and parking lots. This prohibition applies to students, employees, and visitors to the school or school campus and applies whether or not school is in session. The term “tobacco” includes any kind of lighted pipe, cigar, cigarettes, or any other lighted smoking materials, as well as chewing products and snuff. • Electronic Cigarettes, Vaporizers, Etc. The use of electronic cigarettes, vaporizers, etc. on School District property is prohibited. The following definitions apply to this policy. “Electronic Cigarettes” and “Vaporizers” means any device that simulates smoking any type of product, regardless of whether they are manufactured, distributed, marketed, or sold as e-cigarettes, or under any product name or descriptor. • Model Student Handbook (SCC) Language  • Description. A student shall not manufacture, sell, handle, possess, use, deliver, transmit, or be under any degree of influence (legal intoxication not required) of any alcoholic beverages, marijuana, or other intoxicant of any kind. A student shall not inhale glue, aerosol paint, lighter fluid, reproduction fluid, or other chemical substance for the purpose of becoming intoxicated or under the influence (legal intoxication not required). • Penalty.Administrative intervention to permanent expulsion.

28. Restorative Practices You Got This, Right?

29. Restorative Practices • Definition: • “[P]ractices that emphasize repairing the harm to the victim and the school community caused by a pupil’s misconduct.” MCL 380.1310c(3)(b). • When to Use Restorative Practices: • As an alternative to suspension or expulsion • In addition to suspension or expulsion • If there is no suspension or expulsion • “First consideration to remediate offenses” like interpersonal conflicts, bullying/cyberbullying, verbal/physical conflicts, theft, property damage, class disruption, and harassment. MCL 380.1310c(2). • The Legislature has indicated it strongly favors the use of restorative practices – zero tolerance is a policy of the past

30. MCL 380.1310d(1) Factors • Before suspending or expelling a pupil under section 1310, 1311(1), 1311(2), or 1311a, the board of a school district or intermediate school district or board of directors of a public school academy, or a superintendent, school principal, or other designee under section 1311(1), shall consider each of the following factors: • (a) The pupil's age. • (b) The pupil's disciplinary history. • (c) Whether the pupil is a student with a disability. • (d) The seriousness of the violation or behavior committed by the pupil. • (e) Whether the violation or behavior committed by the pupil threatened the safety of any pupil or staff member. • (f) Whether restorative practices will be used to address the violation or behavior committed by the pupil. • (g) Whether a lesser intervention would properly address the violation or behavior committed by the pupil. • Consider in conjunction with restorative practices when determining the proper level of discipline

31. Application to Everyday Life Two types of situations  short-term suspensions and long-term suspensions (LTS) and expulsions LTS and Expulsion: Existing Constitutional Requirements: Written Notice of Charges and Potential Punishment Hearing (Minimum Requirements) Opportunity for Student to Hear Evidence Opportunity for Student to Present Evidence Opportunity for Student to have Attorney New Statutory Requirements: Consideration of Restorative Practices Presumption Against LTS or Expulsion Rebutting Presumption by Considering Student as Individual, Per MCL 380.1310d(1) Factors • Short-Term Suspensions: • Existing Constitutional Requirements: • Verbal Notice of Charges to Student • Opportunity for Student to Respond • New Statutory Requirements: • Consideration of Restorative Practices • Consideration of Student as Individual Factors Set Forth in MCL 380.1310d(1) • Method of Consideration – School District Discretion

32. Cyberbullying Pervasive and Problematic

33. Criminal Cyberbullying • MCL 750.411x (became effective March 27, 2019) • Criminalizes cyberbullying, defined as: • Posting a message or statement in a public media forum about any other person if both of the following apply: • The message or statement is intended to place a person in fear of bodily harm or death and expresses an intent to commit violence against the person. • The message or statement is posted with the intent to communicate a threat or with knowledge that it will be viewed as a threat. • Usually a misdemeanor, but can be a felony if there is a pattern of harassing or intimidating behavior that causes a serious injury or death.

34. Civil Cyberbullying • Under the Revised School Code “cyberbullying” is defined as: • Any electronic communication that is intended or that a reasonable person would know is likely to harm one or more pupils either directly or indirectly by doing any of the following: • Substantially interfering with educational opportunities, benefits, or programs • Adversely affecting a student's ability to participate in or benefit from educational programs or activities by placing a student in reasonable fear of physical harm or by causing substantial emotional distress • Having an actual and substantial detrimental effect on a student's physical or mental health • Causing substantial disruption in, or substantial interference with, the orderly operation of the school

35. Moving Forward • The criminal cyberbullying statute’s definition of “cyberbully” is narrower than the Revised School Code’s • The RSC is broader because it includes more conduct than a threat of bodily harm or death • From a day-to-day standpoint, the RSC definition of “cyberbully” is more useful because it is encountered more often • Where RSC cyberbullying occurs, remember to use restorative practices • If criminal cyberbullying occurs, contact law enforcement • Well-Intentioned but Practically Challenging?

36. Title IX If You Don’t Know It, You Are Asking for Trouble

37. What is Title IX? “No person . . . 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.” -20 U.S.C. § 1681(a)

38. Title IX Scope • Historical Context = Sports • Not-So-Historical Context = Sex Discrimination • Modern Context = LGBTQ Students & Sexual Assault on Campus • Sex discrimination includes sexual violence and gender-based harassment • The protections of Title IX extend to all academic, educational, extracurricular, athletic and other programs of a school, whether those programs take place on campus, in a school facility, at an off-campus class, seminar or event that the school sponsors, or elsewhere • Title IX protects both male and female students and faculty and staff from sexual harassment by any school employees, non-employee third parties and other students

39. District Policy and Standards • Policies/AG 3362/4362/5517 (Harassment) - Excerpts • Policy - The Board of Education recognizes that each professional staff member and volunteer has the right to work in an environment untainted by harassment or discrimination. Offensive conduct which has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, discriminatory, or offensive educational environment disrupts the educational process and impedes the legitimate pedagogical concerns of the District. • AG - If an employee believes that the harassment policy has been violated by a staff member of the District, the employee shall immediately report this concern to the staff member’s supervisor or to the Assistant Superintendent for Human Resources. If an employee believes that the harassment policy has been violated by a student, the employee shall immediately report the concern to the building principal or the Assistant Superintendent for Human Resources. The Assistant Superintendent for Human Resources is an option for anyone who is uncomfortable, for any reason, discussing the concern with building staff. • Forms • Report of Harassment (attached to 3000, 4000, and 5000 series policies)

40. Why Investigate? • Required by law, but … • Gather facts and evidence • Informed decision-making • Adhere to due process requirements for student(s) and staff; adhere to District policy • Create a record of activity • Occurrence / Response • Establish expectations for behavior • Show misconduct will be taken seriously • Be your attorney’s best friend! • Document for future proceedings • Avoid liability

41. Preparing to Investigate • Decide if internal or external (consult HR/SS) • Investigate promptly • “Act quickly, but not hastily” • Review: • all applicable policies • allegations • relevant personnel files (as appropriate) • Understand what evidence is relevant and necessary • Ensure retention of evidence – documents, electronic records, physical evidence, video surveillance

42. Document Your Work • Document, Document, Document!! • Why? • Don’t need a treatise, but documentation must be comprehensive enough to understand what happened and what was investigated • Elements of a good report/summary … • Background information • An explanation of the situation prompting the investigation • How the investigation was carried out • Witnesses interviewed • Documentary evidence reviewed • Attach significant documents to report • Reputation of the parties is irrelevant!

43. Scenario #1 Kendra and Samantha are 7th graders who snuck into a party held by Chris, a 10th grader.  After the party, Kendra tells Samantha she was cornered by Chris and he touched her in a way that made her uncomfortable.  Samantha becomes worried about Kendra and tells one of her teachers about the incident. What is the teacher required to do, if anything? Is the school required to investigate the incident?

44. Scenario #2 A middle school student is accused by a fellow student of sexual harassment. The accuser is a student with a long discipline record, multiple in- and out-of-school suspensions, and has, on at least on one occasion, falsely accused another student of theft. In short, none of the school’s staff is willing to accept the accusation as true. In light of the accuser’s discipline record and history of dishonesty, is the school required to investigate the accusation?

45. Scenario #3 An 11th grader on the softball team discovers she is pregnant halfway through the season. Concerned that the student may be at risk if she continues to play softball, the coach refuses to allow her to participate in practice and games, but does allow her to attend both and otherwise considers her a member of the team. Is this a Title IX issue? Should this issue be reported to the school? Is the school required to investigate?

46. Keys to Title IX Compliance • Understanding of District Policy • Understanding of Expectations • For Self • As a School Leader/Administrator • Encouraging Reporting • Facilitating Reporting • Modeling Appropriate Behavior • Creating a Culture of Respect, Compliance • Address All Forms of Discrimination and Harassment, Including Sex-Based • Investigate! • Document!

48. Additional Questions? Kevin T. Sutton Direct: (248) 988-5695 Cell: (734) 377-7400 Twitter: @SpartanSutton KSutton@LuskAlbertson.com