Transgender Student Rights

From Kirsch-Goodwin & Kirsch, PLLC

Transgender is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from their sex (male, female) at birth.  Gender identity refers to one’s internal understanding of one’s own gender, or the gender with which a person identifies. Gender expression is a term used to describe people’s outward presentation of their gender.  Gender identity and sexual orientation are different facets of identity. Everyone has a gender identity and a sexual orientation, but a person’s gender does not determine a person’s sexual orientation.  Transgender people may identify as heterosexual, homosexual, bisexual, or none of the above.  (Centers for Disease Control, Lesbian, Gay, Bisexual, and Transgender Health, https://www.cdc.gov/lgbthealth/transgender.htm.)

The acronym LGBTQ stands for “lesbian, gay, bisexual, transgender, queer, or questioning,” and is an expansion of the abbreviation “LGB” which in turn replaced the term “gay” back in the last century.

There is more in the news lately about transgender student rights, but the United Stated Department of Education’s Office of Civil Rights (“OCR”) addressed it back in 2010 in a “Dear Colleague” letter about bullying.  There, OCR informed schools that “Although Title IX does not prohibit discrimination based solely on sexual 

orientation, Title IX does protect all students, including lesbian, gay, bisexual, and trans-gender (LGBT) students, from sex discrimination.”  (Dear Colleague Letter: Harassment and Bullying, October 26, 2010.)  As OCR explained, in such cases, schools have “an obligation to take immediate and effective action to eliminate the hostile environment.”

            The CDC provides guidance on what schools can do.  This includes implementing evidence-based policies, procedures, and activities designed to promote a healthy environment for all students, encourage the creation of LGBTQ student-led and student-organized school clubs (such as gay-straight alliances or gender and sexuality alliances open to student of all sexual orientations and genders), encourage respect for all students and prohibit bullying, harassment, and violence against all students, identify “safe spaces” such as counselors’ offices or designated classrooms where LGBTQ student can receive support from administrators, teachers, or other school staff, ensure that health curricula or educational materials include HIV, other STD, and pregnancy prevention information that is relevant to LGBTQ students (such as ensuring that curricula or materials use language and terminology, provide trainings to school staff on how to create safe and supportive school environments for all students, regardless of sexual orientation or gender identity, and encourage staff to attend these trainings, facilitate access to community-based providers who have experience providing health services, including HIV/STD testing and counseling, social, and psychological services to LGBTQ students.

            Recent case (August 2020):  The 4th Circuit U.S. Court of Appeals, which encompasses Virginia, West Virginia, Delaware, Maryland, North Carolina and South Carolina, struck down a Virginia school board’s bathroom policy segregating students with gender identity issues.    The policy limited bathroom use to "corresponding biological genders" and required students with "gender identity issues" to use alternative facilities.  The 4^th Circuit found that the policy violated a transgender male student's constitutional rights and rights under Title IX.  (Title IX provides that 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 educational program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681[a] ; see also 34 C.F.R. § 106.31[a].) The student was initially allowed to use the boy's bathroom, but the community complained and the board amended its policy to state that the use of bathrooms "shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility."  The student sued saying that the board's policy singled him out and discriminated against him for being transgender in violation of both his 14th Amendment rights and Title IX.  The District Court agreed and granted him summary judgment.  The 4^th Circuit affirmed.  Grimm v. Gloucester County Sch. Bd., (4th Cir. 8/26/20).

            The Ninth Circuit and other courts around the country have similarly ruled, striking down bathroom policies that exclude transgender students.  See, Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017), A.H. v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017).

            This link will take you to resources available on the internet:  https://www.cdc.gov/lgbthealth/youth-resources.htm#school

COVID-19 & Online Learning Risks

COVID-19 & Online Learning Risks

From Kirsch-Goodwin & Kirsch, Arizona's Education Lawyers

First, it is important to distinguish between distance learning an online learning.  Not all distance learning is online.  Online learning is learning on the computer; it is one aspect of distance learning.  Distance learning can be on-line – synchronous or recorded – and it can be papers and projects, audio, or anything remote that is not brick-and-mortar.

Risk of on-line instruction revolve around accessibility, mostly for students with visual impairments, hearing impairments, students with ADHD who need reminders to focus, those who are in rural areas with limited or even no computers at home or Wi-Fi.  Remember that the IDEA, 504 and ADA, and Endrew F still apply.  Laws and regulations are not superseded by the pandemic, and schools are obligated to provide a FAPE. 

OSEP provided guidance, informing schools that upon providing distance learning, they must offer equitable access and services to students with disabilities (those with IEPs and those with Section 504 Plans).  As noted in the March 21, 2020 Guidance: “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.”

            On June 25, 2020, the American Academy of Pediatrics (“AAP”) issued interim guidance on school re-entry stating that children learn best when they are in school and that “all policy considerations for the coming school year should start with a goal of having students physically present in school,” unless local public health mandates otherwise, or because of an individual student’s unique medical needs.   AAP states that learning at home is not as effective as learning in a school, will lead to learning gaps, socialization aspect, mental & emotional health, risk of effects of isolation.

            On July 23, 2020, the Centers for Disease Control and Prevention (the “CDC”) issued a summary of current studies regarding the impact of COVID-19 on children.  In “The Importance of Reopening America’s Schools this Fall The Importance of Reopening America’s Schools this Fall,” the CDC explained the importance of considering the full spectrum of benefits and risks of both in-person and virtual learning options.  Acknowledging parents’ understandable concerns about the safety of their children at school in the wake of COVID-19, the CDC stated that the best available evidence indicates if children become infected, they are far less likely to suffer severe symptoms as death rates among school-aged children are much lower than among adults.  At the same time, the CDC warned, the harms that have been attributed to closed schools on the social, emotional, and behavioral health, economic well-being, and academic achievement of children, in both the short- and long-term, are well-known and

significant.  Finally, the lack of in-person educational options disproportionately harms low-income and minority children and those living with disabilities as they are far less likely to have access to private instruction and care and far more likely to rely on key school-supported resources like food programs, special education services, counseling, and after-school programs to meet basic developmental needs.  Aside from a child’s home, no other setting has more influence on a child’s health and well-being than their school.  The CDC explains that the in-person school environment is critical to providing:

·         educational instruction;

·         social and emotional skills;

·         a safe environment for learning;

·         nutritional needs; and

·         physical activity.

Disability categories for special education in Arizona

 In Arizona, a “child with disability” is defined as “a child who is at least three years but less than twenty-two years of age, who has been evaluated [pursuant to Arizona law] and found to have at least one of the following disabilities and who, because of the disability, needs special education and related services[1]:

                                      i.            Autism.

                                    ii.            Developmental delay.

                                  iii.            Emotional disability.

                                  iv.            Hearing impairment.

                                    v.            Other health impairments.

                                  vi.            Specific learning disability.

                                vii.            Mild, moderate or severe intellectual disability.

                              viii.            Multiple disabilities.

                                  ix.            Multiple disabilities with severe sensory impairment.

                                    x.            Orthopedic impairment.

                                  xi.            Preschool severe delay.

                                xii.            Speech/language impairment.

                              xiii.            Traumatic brain injury.

                              xiv.            Visual impairment.

---

[1] A.R.S. § 15-761(2).

Kirsch-Goodwin & Kirsch, PLLC, Education Attorneys

What is Child Find?

 

Child Find 

Lori Kirsch-Goodwin, Esq. and Hope N. Kirsch, M.A.Ed., Esq.

Kirsch-Goodwin & Kirsch, PLLC

8900 East Pinnacle Peak Rd., Suite 250

Scottsdale, Arizona 85255

(480) 585-0600

www.azspecialeducationlawyers.com

All children with disabilities, including children with disabilities who are homeless children or are wards of the State - and children with disabilities attending private schools - regardless of the severity of their disabilities, and who are in need of special education and related services, must be identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. 20 U.S.C.A. § 1412(3)(A).

Each State is required to have policies and procedures to ensure that “all children with disabilities . . . including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated.”  20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.111(a)(1)(i).   This obligation is known as the “child find” requirement.  34 C.F.R. 300.111, titled “Child Find.”  IDEA requires Child Find to include “children who are suspected of being a child with a disability … even though they are advancing from grade to grade.” 34 C.F.R. 300.111(c)(1).  The IDEA “child find” mandate is an affirmative ongoing obligation for schools.

Arizona in turn requires each public education agency (school districts and charter schools) to identify and evaluate all students suspected of having a disability, and to have policies and procedures in place for such identification and evaluation. Arizona Administrative Code, R7-2-401(D) and (E) (emphasis added).  Thus, at least in Arizona, the threshold is very low, requiring nothing more than a suspicion.

A school’s Child Find obligation is triggered where there is knowledge of, or reason to suspect a student has a disability, and reason to suspect that a student may need special education services to address that disability.  Dept. of Educ. v. Cari Rae S., 158 F. Supp.2d 1190, 1194 (D. Hawaii 2001).  The threshold for suspecting that a child has a disability is relatively low.  A school's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services.  Id., at 1195.

Beyond the initial 45-day screening, under Child Find, schools are obligated not only to seek out disabled students, but to also evaluate or provide services when it has “knowledge” of a disabled child.  Knowledge includes poor grades, behavioral concerns, and/or “off-task” classroom behavior.  J.S. v Shoreline school, 220 F.Supp.2d.1175, 1184, 170 Ed. Law Rep. 264 (W.D. Wash. 2002).  Parents expressing concern their child might have autism triggers an evaluation.  Orange Unified school v. C.K., 59 IDELR 74 (C.D. Cal. 2012).  Reported anxieties also trigger the obligation to evaluate.  Forest Grove School District, Oregon State Educational Agency, 9/12/2012 (finding Child Find violation when no evaluations were completed to determine why the student was exhibiting anxious behaviors and how they were interfering with her education).

Thus, there are no magic words that trigger the duty to evaluate; there need be nothing more than suspicion, possibility, or concern.  The suspicion threshold is relatively low because the key is not whether the child actually qualifies for special education services, but whether the child should be referred for an evaluation. 

The school district responsible for child find:

·         Non-profit private schools district in which non-profit school is located. Arizona Administrative Code (“A.A.C.”) Rule 7-2-401(D)(4)(b).

·         For-profit private schools, the district where the parent resides. Letter to Chapman , (OSEP 2007).

This is what Letter to Chapman says:

“Under section 612(a)(3)(A) of IDEA and 34 CFR §300.111, a State must ensure that all children with disabilities residing in the State, including children with disabilities attending private schools, and who are in need of special education and related services, are identified, located, and evaluated; this includes children with disabilities attending for-profit private schools. A State determines which public agency is responsible for conducting child find under 34 CFR §300.111 for children suspected of having a disability attending for-profit private schools. Generally, this agency is the LEA in which the child resides.”

Under Arizona statutes, homeschooled students are considered private school students.  A.R.S. § 15-763(C).  Charter schools are responsible for child identification activities for students enrolled in the charter school.  A.A.C. R7-2-401(D)(4)(a).  However, charter schools are not responsible for outreach under the child find regulations because charter schools have no specific geographical boundaries.