Post-9/11 Issues Affecting School Districts

1. Post-9/11 Issues Affecting School Districts Maree F. Sneed Hogan & Hartson L.L.P. 555 Thirteenth Street, NW Washington, DC 20004 mfsneed@hhlaw.com (202) 637-6416 John W. Borkowski Hogan & Hartson L.L.P. 546 Carondelet Street New Orleans, LA 70130-3588 jwborkowski@hhlaw.com (504) 593-0824

2. Post-9/11 Issues • School Safety • USA Patriot Act • Reservists • NCLB • Preventing Harassment • Issues Regarding Muslim Students • Accommodating Muslim Teachers • The Pledge of Allegiance • Immigration

3. I. School Safety • Seven schools were near ground zero. • 3000 children were evacuated. • New York had required all schools to have emergency plans in place by July 1, 2001.

4. I. School Safety (2) Lessons . . . • Plans were incomplete and not in usable format. • Teachers were not fully informed about the plans. • Evacuations proved problematic, e.g. no regrouping locations had been identified.

5. I. School Safety (3) Lessons . . . • Plans should be usable action plans. • Plans should be practiced. • Communication is essential. • Parents should be aware of emergency plans.

6. I. School Safety (4) District Crisis Plans • Coordinate with local law enforcement and emergency management; • Identity possible dangers in areas near schools; • Establish multiple evacuation routes; • Identify reunification sites; and • Provide first-responder training for security guards and other school personnel. Resources for District plans: www.ed.gov/emergencyplan/.

7. I. School Safety (5) Issues for School Sites • Control access to school sites. • Consider periodic inspections at schools.

8. I. School Safety (6) Communications Issues • Establish hotlines for principals; • Provide or require cell phones for teachers; • Use District e-mail system; and • Evaluate cell phone policies for students.

9. I. School Safety (7) In September 2004, the America Prepared Campaign, Inc. released a report finding few of the nation’s 20 largest school districts are well prepared for a terrorist attack. The full report is available at: www.americaprepared.org

10. I. School Safety (8) The report finds several districts, including Fairfax, Virginia and Montgomery County, Maryland, to be “well-prepared” and attaches sample materials that may be incorporated in Crisis Response Plans.

11. I. School Safety (9) In response to the terrorist incident at a school is Beslan, Russia, the Department of Education issued a “Dear Colleague” letter on October 6, 2004 addressing school safety and highlighting lessons learned from that tragic event.

12. I. School Safety (10) Some of the principle DOE recommendations include: • Review all school emergency and crisis management plans; • Practice your plan; • Consider single entry points for all students, staff, and visitors; • Enhance security of school buildings themselves, see www.edfacilities.orgfor suggestions; and • Look for Homeland Security/FBI indicators of possible terrorist or criminal threat.

13. I. School Safety (11) Possible indicators of a threat: • Pedestrian or mobile surveillance; • Unusual interest in security, entry points, and fences; • Interest in obtaining site plans for schools, bus routes, attendance lists and other information about a school, its employees or students; • Observation of security reaction drills or procedures; • Increase in anonymous telephone or e-mail threats; • Prolonged static surveillance using strangers; and • Discreet use of cameras or video recorders, or drawing or note-taking at non-tourist locations.

14. I. School Safety (12) Other DOE reminders: • Emergency website: www.ed.gov/emergencyplan • Emergency Response and Crisis Management Grants • $28 million in DOE awards • More expected in 2005 • The Safe Schools-Health Schools Initiative Grants • $95 million in 2004 • More anticipated for 2005

15. II. USA Patriot Act Generally: • Enhanced surveillance authority for federal government • Reorganized of federal agencies related to homeland security

16. II. USA Patriot Act (2) Amendments to Family Educational Rights and Privacy Act (“FERPA”): • FERPA prohibits school districts from releasing educational records without consent 20 U.S.C. §1232g

17. II. USA Patriot Act (3) Section 507 of the Patriot Act provides that the Attorney General or designee may submit a request to a court for an ex parte order requiring a school district: • To gather records related to a terrorism investigation; and • In this context, disseminate and use such records consistent with such guidelines established by the Attorney General in consultation with the Secretary of Education.

18. III. Reservists • In both wars since 9/11, reservists have been called to active duty, including many school employees. • The Uniform Services Employment Rights Act of 1994 (“USERR”) protects the employment rights of persons who undertake military service. 38 U.S.C. §§4301-4333.

19. III. Reservists (2) As NSBA’s excellent publication on USERRA notes, the Act outlines responsibilities of military service members and school districts. See NSBA Federal File: Guidance on School Law: USERRA

20. III. Reservists (3) Responsibilities of the uniformed service member are to: • Provide written or advance notice to employers; • Provide documentation to the school district upon returning to their job; and • Report back to work on time and as required by USERRA.

21. III. Reservists (4) School District Responsibilities: • Grant leave of absence upon employee notification; • Provide timely reinstatement to service member upon return from duty; • Grant status, seniority, and applicable benefits to active duty and returning members; • Train member, if necessary, for reemployment; and • Do not discriminate in hiring, reemployment, promotion or benefits based on membership in the armed forces.

22. III. Reservists (5) The Department of Labor, on September 20, 2004 announced new proposed regulations with respect to USERRA. 20 CFR Part 1002 Comments are due on or before November 19, 2004.

23. IV. NCLB Issues • The No Child Left Behind Act (“NCLB”) was passed by Congress on December 13, 2001 and signed into law on January 8, 2002. • NCLB may have been passed in part: • Because of post-9/11 patriotism and bipartisanship? • Because Congress was focused on national security legislation (such as the USA Patriot Act) and spent less time debating federal education policy?

24. IV. NCLB Issues (2) U.S. Secretary of Education Roderick Paige has suggested that 9/11 affected the timing of passage of NCLB: • “When President Bush took office in January 2001, it wasn't clear that this sea change [in federal education policy] would occur. . . . Congress did not move expeditiously in debating and subsequently adopting the bill. Through the debate on tax cuts, the change in leadership in the Senate,the terrorist attack on 9/11, and the closure of the congressional office buildings due to the anthrax ‘attacks,’ it was not until the end of 2001 that Congress moved to pass the bill.”

25. IV. NCLB Issues (3) Certain provisions of NCLB may reflect post-9/11 concerns. For example: • Military Recruiting Provisions • Boy Scouts of America Equal Access Act

26. IV. NCLB Issues (4) Military Recruiting

27. IV. NCLB Issues (5) Military Recruiting • Any school district receiving ESEA funds must, upon request of military recruiters or higher education institutions, provide access to secondary school students’ names, addresses, and telephone listings, unless parents opt out of such disclosure in writing. School districts must notify parents of the option to require prior written parental consent to such disclosure. School districts must provide military recruiters the same access to secondary school students as is provided generally to postsecondary educational institutions or prospective employers. • USDOE issued guidance regarding this requirement on October 9, 2002.

28. IV. NCLB Issues (6) Military Recruiting – Opt Out vs. Opt In • Some school districts have implemented requirement through opt-in process to protect student privacy. • USDOE’s Family Policy Compliance Office has suggested, however, that an opt-in process would not comply with “the letter and spirit of the law.” A July 2, 2003 joint letter from USDOE and the Department of Defense likewise indicates that an opt-in process is inappropriate: NCLB does “not permit LEAs to institute a policy of not providing the required information unless a parent has affirmatively agreed to provide the information.” • The Department of Defense plans to notify governors and Congressional representatives if it believes a school or district is not in compliance.

29. IV. NCLB Issues (7) Military Recruiting – Implementation • Review policies and practices for compliance. • Consider policy modifications.

30. IV. NCLB Issues (8) Patriotic Organizations The Boy Scouts

31. IV. NCLB Issues (9) Patriotic Organizations: Boy Scouts • Public schools, school districts, and states that have designated an “open forum” or “limited public forum” and that receive funds from USDOE are prohibited from denying equal access or fair opportunity to meet to, or discriminating against, any group officially affiliated with the Boy Scouts of America or any other youth group recognized under federal law as a “patriotic society.” • USDOE issued a notice of proposed rulemaking regarding this requirement on November 15, 2002. USDOE indicated that it planned to issue further proposals in November 2003, but as of September 20, 2004, there have been no additional regulatory developments on this issue.

32. IV. NCLB Issues (10) Patriotic Organizations Boy Scouts – Implementation • Review policies and practices for compliance. • Consider policy modifications.

33. V. Preventing Harassment • Title VI and Title VII prohibit discrimination on grounds of race or national origin. • Such prohibited discrimination can include harassment by school employees or students.

34. V. Preventing Harassment (2) Title VI No individual may be excluded from participation in, be denied benefits of, or otherwise subjected to discrimination on the ground of race, color or national origin in any program or activity that receives federal funds. 42 U.S.C. 2000

35. V. Preventing Harassment (3) Title VII It shall be unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. §2003-2(a)(1)

36. V. Preventing Harassment (4) Types of Harassment • Racial or national-origin based conduct that has a discriminatory effect and that consists of different treatment on such grounds by the school district’s employees acting with the scope of their duties

37. V. Preventing Harassment (5) • A racial or national-origin based hostile environment that is created, encouraged or tolerated and that constitutes differential treatment on such grounds

38. V. Preventing Harassment (6) • Hostile Environment • Harassing conduct (physical, verbal, graphic or written) • Insults • Name calling • Taunting • Intimidation • Hateful graffiti • Sufficiently severe, persistent and pervasive to interfere with or limit an individuals ability to participate in or benefit from the program or activity • Remember: The harasser need not be district employee.

39. V. Preventing Harassment (7) Two keys to liability for damages • Notice • An inadequate District response

40. V. Preventing Harassment (8) A Checklist for School Districts • Does your school district have clear policies addressing all kinds of harassment? • Is the guiding principle of these anti-harassment policies creating a safe, respectful environment for learning?

41. V. Preventing Harassment (9) A Checklist for School Districts (cont’d) • Do the policies: • define harassment; • require staff to report possible harassment and to intervene and stop it; • identify responsible persons who can receive reports of harassment; and • list possible consequences for harassers?

42. V. Preventing Harassment (10) A Checklist for School Districts (cont’d) • Who has been appointed to coordinate the prevention efforts and to ultimately receive any reports of incidents? • Does your school district’s student code of conduct and personnel policies also prohibit harassment and provide for effective discipline?

43. V. Preventing Harassment (11) A Checklist for School Districts (cont’d) • Has your school district effectively made all members of the school community, including students and parents, aware of its harassment policies? • Have responsible school district personnel been trained to conduct thorough investigations and to respond appropriately?

44. V. Preventing Harassment (12) A Checklist for School Districts (cont’d) • Is the school district prepared to document fully the scope and findings of any harassment investigation? • Is the school district ready to deal with privacy concerns? • Is the school district aware of which incidents should or must be referred to law enforcement officials in your state?

45. VI. Accommodating Muslim Students First Amendment Issues with Respect to Hijabs or Headscarves • Oklahoma Hijab Lawsuit: A sixth-grade Muslim girl was suspended for wearing a hijab because it violated the school district’s dress code. • The student filed a lawsuit in the U.S. District Court for the Eastern District of Oklahoma alleging a violation of her right to free exercise of her religious beliefs. • The U.S. Justice Department intervened on the side of the student.

46. VI. Accommodating Muslim Students (2) First Amendment Issues with respect to Hijabs or Headscarves • The Oklahoma case was settled in May 2004 and required the school district to: • Pay an undisclosed sum of money; • Change its dress code to allow students to wear religious headgear if they apply and have their requests approved by the school board; and • Put in place a training program for all teachers and administrators about the new dress code. • With respect to the Oklahoma settlement, the Assistant Attorney General for Civil Rights, stated that “[t]his settlement reaffirms the principle that public schools cannot require students to check their faith at the school house door.”

47. VI. Accommodating Muslim Students (3) First Amendment Issues with Respect to Hijabs or Headscarves • Louisiana Hijab Incident: A Louisiana high school removed a social studies teacher who allegedly had pulled back a Muslim student’s hijab and said “I hope God punishes you. No, I’m sorry, I hope Allah punishes you.” • August 20, 2004, Letter from Justice Department: The Assistant Attorney General for Civil Rights issued a letter to the state departments of education that referred to both the Oklahoma and Louisiana hijab incidents and asked school officials to help prevent “ugly and hateful incidents of violence and discrimination directed against Muslim, Sikh, and South-Asian students, motivated by religious or national origin intolerance.” • The letter also suggested that prohibiting a student from wearing a hijab is “inconsistent with federal law and should not be tolerated.”

48. VI. Accommodating Muslim Students (4) First Amendment Issues with Respect to Hijabs or Headscarves • Isaacs v. Board of Education of Howard County, 40 F.Supp.2d 335 (D. Md. 1999): A federal district court ruled that a high school could prevent a student from wearing a multicolored headwrap to school for cultural reasons. In doing so, it explained that the school’s “no-hats” policy, which included an exception for religious headgear, did not violate a student’s free speech rights or due process rights. • Although the court found that the headwrap constituted speech, the court explained that the “no-hats” policy served the important government interest of providing a safe learning environment. • The court also emphasized that the school can treat religious headgear differently because it implicates two constitutional rights: freedom of speech and freedom of religion.

49. VI. Accommodating Muslim Students (5) First Amendment Issues with Respect to Hijabs or Headscarves • General Rule: If school districts have policies preventing the wearing of hats or other headgear, the districts should make an exception for religious headgear, such as yarmulkes and hijabs.

50. VI. Accommodating Muslim Students (6) Friday Absences for Religious Purposes • Commonwealth v. Bey, 70 A.2d 693, 694 (Pa. Super Ct. 1950): A Pennsylvania state court found that requiring continuous attendance at a school did not violate the parents’ religious freedom because the requirement is “reasonable and enforceable” and because the parents had the option of sending their child to a private school. • Pennsylvania’s compulsory school code required students to attend “continuously throughout the entire term” a public school, private school, or any educational institution. A Muslim family, however, refused to send their children to schools on Friday because it is a sacred day for their religion. • The court acknowledged that it is “virtually impossible properly to educate a child who is absent one day a week” because “each day’s school work is built upon the lessons taught on the preceding day” and “the pupil is not able to keep pace with his classmates.”