Important New USED Guidance on School Enrollment Procedures, Title IX, FERPA

1. Important New USED Guidance on School Enrollment Procedures, Title IX, FERPA June 11, 2014

2. Today’s Presenters Maree SneedPartner,Hogan Lovells LLP Michelle TellockAssociate,Hogan Lovells LLP

3. Today’s Agenda • School enrollment procedures • Title IX/Sexual Violence • FERPA/Uninterrupted Scholars Act • Any other questions?

4. Ripped from the Headlines

5. Overview: School Enrollment Procedures Guidance Package • Joint effort by U.S. Department of Education and Department of Justice • Released May 8, 2014 “[A] State may not deny access to a basic public education to any child . . . , whether present in the United States legally or otherwise. Denying ‘innocent children’ access to a public education . . . ‘imposes a lifetime of hardship on a discrete class of children not accountable for their disabling status’ . . . ” “Under Federal law, State and local educational agencies . . . are required to provide all children with equal access to public education at the elementary and secondary level” – regardless of “their or their parents’ or guardians’ actual or perceived citizenship or immigration status.”

6. Behind the Guidance:The Law • Title IV of the Civil Rights Act of 1964 • Prohibits discrimination in public elementary and secondary schools based on race, color, or national origin, among other factors • Title VI of the Civil Rights Act of 1964 • Prohibits discrimination based on race, color, or national origin by recipients of Federal financial assistance • Plyler v. Doe (U.S. Supreme Court, 1982) • Prohibits districts from barring students from attending public school on the basis of their own citizenship or immigration status or that of their parents or guardians

7. Overview: School Enrollment Procedures Guidance Package • The Guidance Package includes three resources: • Dear Colleague Letter (“DCL”) • Replaces the Dear Colleague Letter from May 6, 2011 • Questions and Answers for School Districts and Parents • Fact Sheet, directed at parents

8. Dear Colleague Letter:Legal Background • The Dear Colleague Letter does not constitute new regulations • The Dear Colleague Letter does not add requirements to applicable law • Courts would likely show deference to the Departments’ interpretations and guidance

9. What the DCL says:Observations, in brief • Schools cannot bar students from enrolling in public schools on the basis of their own citizenship or immigration status or that of their parents or guardians • Schools cannot request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin

10. What the DCL says:Observations, in brief • A district may require documentation to prove residency* but . . . Guidance Example A district may require copies of phone and water bills or lease agreements to establish residency. While a district may restrict attendance to district residents, inquiring into students’ citizenship or immigration status, or that of their parents or guardians, would not be relevant to establishing residency within the district. A district should review the list of documents that can be used to establish residency to ensure that any required documents would not unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school. *Exception: Homeless children and youth

11. What the DCL says:Observations, in brief • A school may request data about a student’s race and/or ethnicity to comply with Federal or state standards, but a parent’s or guardian’s refusal to comply with these requests cannot lead to a denial of a student’s enrollment or other discrimination against the child

12. Should districts refrain from asking for social security numbers? Guidance Answer The Federal government does not prohibit school districts from collecting the SSNs of prospective or current students. States and local districts must decide, however, whether they have a legally permissible reason to collect this information. A district cannot deny enrollment to a student if he or she chooses not to provide the student’s SSN. A school district that opts to request SSNs should make clear in all enrollment and registration documents that the provision of the child’s SSN is voluntary, and that choosing not to provide a SSN will not bar a child’s enrollment.

13. How can my district complywith the Guidance Package? • Evaluate whether current policies bar, chill, or discourage school participation • Evaluate reasons for asking for SSNs or birth certificates • Evaluate reasons for asking for race and ethnicity data • Analyze enrollment data to see if there are drops in enrollment that might indicate barriers to attendance

14. What additional proactive steps can my district take? • Proactively notify parents of their rights to send children to public school • Conduct outreach to inform parents that all students who are residents in the district are welcome • Provide training to staff on how to avoid violating the law in this area

15. Ripped from the Headlines

16. Title IX • Title IX of the Education Amendments of 1972 (“Title IX”) prohibits discrimination on the basis of sex in federally-funded education programs and activities • All public elementary and secondary schools and school districts receiving federal financial assistance must comply

17. Title IX and Sexual Violence: USED Guidance • April 4, 2011 – Office for Civil Rights (“OCR”) issued a Dear Colleague Letter on student-on-student sexual harassment and sexual violence • The DCL explained a school’s responsibility to respond promptly and effectively to sexual violence in accordance with Title IX

18. Title IX and Sexual Violence: USED Guidance • The April 4, 2011 DCL supplemented OCR’s Revised Sexual Harassment Guidance, issued in 2001 (“2011 Guidance”) • The DCL and the 2011 Guidance “remain in full force”, but • On April 29, 2014, USED offered “additional guidance” in the form of a 46-page Q&A

19. Title IX and Sexual Violence: USED Guidance • The new Q&A is divided into multiple topics, including: Retaliation A school’s obligation to respond to sexual violence Students protected by Title IX Title IX procedural requirements Responsible employees and reporting Confidentiality and a school’s obligation to respond to sexual violence Investigations and hearings Interim measures Remedies and notice of outcome Title IX training, education, and prevention Appeals Further federal guidance First Amendment

20. Responding to Sexual Violence Guidance Example How does Title IX apply to student-on-student sexual violence? Under Title IX, federally funded schools must ensure that students are not denied or limited in their ability to participate in or benefit from the school’s educational programs or activities on the basis of sex. A school violates a student’s rights under Title IX when the following conditions are met: (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

21. Responding to Sexual Violence Guidance Example Does Title IX cover employee-on-student sexual violence, such as sexual abuse of children? Yes, Title IX protects students from . . . sexual harassment carried out by school employees. Sexual harassment by school employees can include unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature, including but not limited to sexual activity. . . . A school should take steps to protect its students from sexual abuse by its employees. It is therefore imperative for a school to develop policies prohibiting inappropriate conduct by school personnel and procedures for identifying and responding to such conduct.

22. Students Protected by Title IX Guidance Example Does Title IX protect all students from sexual violence? Yes. Title IX protects all students at recipient institutions from sex discrimination, including sexual violence. Any student can experience sexual violence: from elementary to professional school students; male and female students; straight, gay, lesbian, bisexual and transgender students; part-time and full-time students; students with and without disabilities; and students of different races and national origins.

23. Students Protected by Title IX: Students with disabilities Guidance Example What issues may arise with respect to students with disabilities who experience sexual violence? When students with disabilities experience sexual violence, federal civil rights laws other than Title IX may also be relevant to a school’s responsibility to investigate and address such incidents. Certain students require additional assistance and support. For example, students with intellectual disabilities may need additional help in learning about sexual violence, including a school’s sexual violence education and prevention programs, what constitutes sexual violence and how students can report incidents of sexual violence. In addition, students with disabilities who experience sexual violence may require additional services and supports, including psychological services and counseling services. . . .

24. Students Protected by Title IX: Students with disabilities . . . continued A student who has not been previously determined to have a disability may, as a result of experiencing sexual violence, develop a mental health-related disability that could cause the student to need special education and related services. At the elementary and secondary education level, this may trigger a school’s child find obligations under IDEA and the evaluation and placement requirements under Section 504. A school must also ensure that any school reporting forms, information, or training about sexual violence be provided in a manner that is accessible to students and employees with disabilities, for example, by providing electronically-accessible versions of paper forms to individuals with print disabilities, or by providing a sign language interpreter to a deaf individual attending a training.

25. Confidentiality and a School’sObligation to Respond How should a school respond to a student’s request that his or her name not be disclosed to the alleged perpetrator or that no investigation or disciplinary action be pursued to address the alleged sexual violence? OCR strongly supports a student’s interest in confidentiality in cases involving sexual violence. There are situations in which a school must override a student’s request for confidentiality in order to meet its Title IX obligations; however, these instances will be limited and the information should only be shared with individuals who are responsible for handling the school’s response to incidents of sexual violence. . . . In the case of minors, state mandatory reporting laws may require disclosure, but can generally be followed without disclosing information to school personnel who are not responsible for handling the school’s response to incidents of sexual violence. . . . Regardless of whether a student complainant requests confidentiality, a school must take steps to protect the complainant as necessary, including taking interim measures before the final outcome of an investigation.

26. Title IX and Sexual Violence: Stay Tuned • The White House Task Force to Protect Students from Sexual Assault issued its first report, entitled, “Not Alone,” on April 29, 2014 • The first report focuses on sexual assault at postsecondary institutions, but the Task Force has said it will “consider how [its] recommendations apply to public elementary and secondary schools"

27. Uninterrupted Scholars Act (“USA”) • Signed into law by President Obama on January 14, 2013; effective immediately • Amends the Family Educational Rights and Privacy Act (“FERPA”) in two ways • Parts B and C of the Individuals with Disabilities Education Act (“IDEA”) incorporate the same protections of, and are consistent with, FERPA • USED has not yet amended relevant FERPA or IDEA regulations • USED guidance: May 27, 2014

28. Ripped from the Headlines

29. What does FERPA require? • FERPA protects personally identifiable information (“PII”) from students’ educational records from unauthorized disclosure • A school cannot disclose PII from education records unless: • Written permission from parents or eligible (18+) student OR • Disclosure under an exception

30. USA: The FERPA Exceptions New Exception Permits educational agencies and institutions to disclose a student’s educational records, without parental consent, to a caseworker or other representative of a State or local child welfare agency or tribal organization authorized to access a student’s case plan “when such agency or organization is legally responsible, in accordance with State or tribal law, for the care and protection of the student.” Amended Exception Permits educational agencies and institutions to disclose a student’s education records pursuant to a judicial order without requiring additional notice to the parent by the educational agency or institution, in specified types of judicial proceedings (i.e., child abuse and neglect; dependency matters) in which a parent is involved.

31. Applying the Exceptions Guidance Example A high school receives a request from the local CWA for all of the education records relating to certain students who are in foster care placement. Does the high school have to turn over all of the information, or just the information that the high school thinks the CWA needs to see? FERPA doesn’t require the high school to disclose any education records to the CWA. However, the USA amended FERPA to permit the high school to turn over all or part of the education records for the students who are in foster care placement. The CWA may use these records to address the students’ education needs. The Department strongly encourages schools and LEAs to work cooperatively with CWAs and tribal organizations to ensure that the education needs of students in foster care placement are adequately addressed.

32. Applying the Exceptions Guidance Example The CWA asks the local school to provide the welfare agency with the education records on children who are not in foster care placement. Does the USA allow the school to share education records with the CWA for this purpose? No. The USA would permit the school to disclose education records . . . only to agency caseworkers or other representatives of the CWA who have the right to access the case plan for children in out-of-home placement (i.e., foster care placement). The USA exception would not apply to those children who are not in foster care placement. Thus, FERPA would not permit the school to disclose education records to the CWA on students who remain at home and who are not in foster care placement unless there is written consent of the parent or eligible student. Thus, FERPA would not permit the school to disclose education records to the CWA pertaining to those students receiving in-home services . . .

33. What does FERPA require? • If a school discloses education records under these exceptions, the school must maintain a record of each request and each disclosure of PII from the education records of each student. The record must include: • The parties who have requested or received PII from the education records, and • The legitimate interests the parties had in requesting or obtaining the information

34. Questions & Answers

35. Questions/Concerns If you seek more information on USED technical assistance, or would like a copy of this presentation, please email Sasha Pudelski (spudelski@aasa.org). If you wish to receive legal council specific to your district’s needs, please email (Maree Sneed maree.sneed@hoganlovells.com) or Michelle Tellock (michelle.tellock@hoganlovells.com).