HOT TOPICS” IN EDUCATION LAW - ACBO

"Hot Topics" in Education Law

"HOT TOPICS" IN EDUCATION LAW

Presented by: Paul M. Loya, Partner Meredith E. Brown, Partner/Trustee Peralta CCD

15841696

Association of Chief Business Officials California Community Colleges Spring Conference May 22-24, 2017

Cerritos ? Fresno ? Irvine ? Marin ? Pasadena ? Pleasanton ? Riverside ? Sacramento ? San Diego

HOT TOPICS AGENDA ? Education Law Update:

?Part-time Faculty ?An Overview ? Transgender Students

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HOT TOPICS AGENDA

A PRACTICAL GUIDE TO DUAL ENROLLMENT (AB 288)

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May 23, 2017

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"Hot Topics" in Education Law

HOT TOPICS AGENDA

? Creating a Safe and Supportive Environment for All Students Irrespective of Immigration Status

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HOT TOPICS AGENDA

PUBLIC RECORDS ACT

AALRR Blogs

? Implementing Educational Technology

? Technology in Education -- Not as Simple as "AUP"

CyberMisconduct in the Digital

Age

? Students ? Employees

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Question Answer

Session

?2017 Atkinson, Andelson, Loya, Ruud & Romo

May 23, 2017

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EDUCATION LAW UPDATE: Part-Time Faculty Transgender Students

Presented by: Paul M. Loya, Partner Meredith E. Brown, Partner/Trustee Peralta CCD

15841696

Association of Chief Business Officials California Community Colleges Spring Conference May 22-24, 2017

Cerritos ? Fresno ? Irvine ? Marin ? Pasadena ? Pleasanton ? Riverside ? Sacramento ? San Diego

Part-Time Temporary Faculty

? 87482.5

? Part time (67% or less) faculty "shall be" temporary

? 87482.9 (effective 1/1/02)

? Made adjunct (part-time temporary) faculty "earning and retaining reappointment rights" a mandatory subject of bargaining

? Santa Monica CCD case (2015):

? Court of Appeal holds that CBA giving reemployment rights except upon showing of "cause" is enforceable in grievance arbitration

? AB 1690 (signed by Governor 9/30/16, before SB 1379)

? Adds Education Code section 87482.3 setting forth new minimum standards and bargaining requirements for evaluation, workload, and seniority of adjuncts

? Effectively superseded by SB 1379 (next slide)

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Part-Time Temporary Faculty

? SB 1379 (signed by Governor 9/30/16, after AB 1690)

? Amends Ed Code 87482.3 (which was added by AB 1690) ? Requires that specified minimum standards (length of service,

number of courses taught, `availability, willingness and expertise' of adjuncts) be established for reemployment preference for adjuncts ? Requires that negotiations commence by 7/1/17 ? Negotiations must address terms of reemployment preference, including evaluation and termination policies ? Expressly states part-time faculty assignments are temporary ? Compliance is a condition of receiving funds allocated for the Student Success and Support Program in the annual Budget Act

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Transgender Students: What We'll Cover

1. An Overview: Transgender Students

? Key terms to understanding transgender issues 2. The Law

? California Law ? Title IX of the Education Amendments of 1972 (Title IX)

3. Elements to Ensure Compliance

? Issue Areas to be Addressed to Comply with the Law

4. The Interactive Process

? A Suggested Process to Work with Transgender Students

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Relevant Terms

Definitions

1. Gender means sex, and includes a person's gender identity and gender expression (Cal. Educ. Code ? 210.7)

2. Gender Expression means a person's gender?related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth (Cal. Educ. Code ? 210.7)

3. Gender identity refers to an individual's internal sense of gender. A person's gender identity may be different from or the same as the person's sex assigned at birth (May 2016 Dear Colleague Letter (DCL), Office for Civil Rights (OCR), U.S. Department of Education; see also, Frequently Asked Questions-Equal Opportunity & Access (CDE FAQ), California Department of Education)

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Relevant Terms

Definitions 4. Transgender describes those individuals whose

gender identity is different from the sex they were assigned at birth. (May 2016 DCL; see also, CDE FAQ) 5. Gender transition refers to the process in which transgender individuals begin asserting the sex that corresponds to their gender identity instead of the sex they were assigned at birth. (May 2016 DCL) 6. Sex assigned at birth refers to sex designation recorded on birth certificate. (May 2016 DCL)

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California Law: Transgender Students

"School Success and Opportunity Act"

California Code of Education ? 221.5(f) (California Assembly Bill (AB) 1266) Effective January 1, 2014

? Pupils in elementary and secondary schools must be permitted to participate in sex-segregated programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records

? No identical higher education statutory language, HOWEVER . . .

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California Law: Transgender Students

"Equity in Higher Education Act"

California Code of Education ? 66250 et seq. (Amended by California Senate Bill 777 (2007) and Assembly Bill

887 (2011)) ? Effective January 2008 ? Expanded prohibition against discrimination in "any

program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid" to include discrimination on the bases of gender, gender identity, and gender expression. (Cal. Ed. Code ? 66270) ? Effective January 2012 ? Amended definition of "gender" to include a person's sex, as well as a person's gender identity and gender expression, and defined "gender expression" as meaning one's gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth. (Cal. Ed. Code ? 66260.7)

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Title IX: The Text

No person in the United States 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.

(Title IX of the Education Amendments of 1972 (20 U.S.C. ? 1681 et seq.) and related regulations

(34 C.F.R. Part 106).)

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Federal Guidance

2016 Dear Colleague Letter on Transgender Students



? Issued jointly by OCR of U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice ("DOJ")

? DOJ and OCR "treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations"

? Issues covered in guidance: safe and nondiscriminatory environment; identification documents, names, and pronouns; sex-segregated activities and facilities; and privacy and education records

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Federal Guidance

2016 Dear Colleague Letter ? When student (or parent/guardian where appropriate) notifies

administration that student will assert gender identity that differs from previous representations or records, school will begin treating student consistent with student's gender identity. ? Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as prerequisite to being treated consistent with gender identity. ? The desire to accommodate others' discomfort cannot justify a policy that singles out and disadvantages a particular class of students.

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Federal Guidance

2016 Dear Colleague Letter ? Title IX does not apply to admissions policies of private

single-sex undergraduate colleges ? Title IX does not apply to the membership practices of

social fraternities and sororities ? A college or university may provide separate housing for

the sexes, but must allow a student to access housing based in their gender identity and may offer (but not require) separate housing as an alternative for any student that requests accommodations

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States' Challenge Against Federal Government's Interpretation of Title IX

Example: Texas, et al. v. United States of America, et al.:

? Certain states sued the federal government in federal district court, in part, over its interpretation of Title IX as, for example, described in its May 2016 Dear Colleague Letter.

? On August 21, 2016, a federal district court granted the states' motion for a preliminary injunction blocking the federal government's enforcement of its interpretation that Title IX protects an individual based on gender identity.

? On September 12, 2016, the federal government filed a motion requesting clarification of the court's preliminary injunction.

? On October 19, 2016, a district court issued a clarification of its preliminary injunction...

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States' Challenge Against Federal Government's Interpretation of Title IX

Preliminary Injunction Clarification:

1. The Injunction is Nationwide: Applies to all states including California and not just Plaintiff states.

2. Scope of Injunction: Only prevents government from using Dear Colleague to argue that the definition of "sex" as it relates to intimate facilities includes gender identity.

3. NOTE: Does not affect a school's obligation to investigate and remedy complaints of sexual harassment, sex stereotyping, and bullying.

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States' Challenge Against Federal Government's Interpretation of Title IX

Remaining Preliminary Injunction Issues: The parties must submit briefs to discuss... 1. Whether the injunction implicates Title VII

- specifically where school employees and staff may share intimate facilities with students.

2. Effect on Workplace Discrimination

- how the injunction applies to the Occupational Safety and Health Administration and Department of Labor.

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SCOPE OF TITLE IX WILL BE DETERMINED BY U.S. SUPREME COURT

On Friday, October 28, 2016, the U.S. Supreme Court announced it will review the decision of the Fourth Circuit Court of Appeals in a separate matter involving the rights of a transgender student under Title IX to use a restroom aligned with his gender identity (G.G. v. Gloucester County School Board)

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Components of Compliance

1. Identification as a transgender student 2. Transitions 3. Harassment/bullying 4. Access to facilities 5. Athletic participation 6. Privacy concerns 7. Education records 8. Training

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DCL in Conjunction with CDE FAQ Continue to Serve as Useful Tool-- Identification as a Transgender Student

OCR May 13, 2016 Dear Colleague Letter: ? No medical diagnosis or treatment is required as a prerequisite

for a student to be treated consistent with his/her gender identity.

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