Georgia School Superintendents Association Spring Bootstrap Conference Legal Issues Update April 16, 2015 Phillip L. Hartley Harben, Hartley & Hawkins, LLP 1

ISSUES FROM THE GENERAL ASSEMBLY

Guns/Weapons in the Schools HB 492 does not change the definition of “weapon” in the criminal code as related to felonies in school safety zones Does change the definition of designated felony for juvenile court purposes to require gun, weapon with assault, second offense Thus, changes the reporting requirements of to match juvenile code 3

What should you do? Does not affect requirements for code of conduct that still references firearms, dangerous weapons and hazardous objects Does not change the issue related to parents when they carry or pick up children Does not affect the question of whether board offices are school safety zones 4

HB 198 – Suicide Prevention DOE Rule requiring training in suicide awareness and prevention for certified staff Policy required at local level, DOE to provide model No cause of action, no standard of care established But still be careful of ministerial duty creation 5

HB 131 – Cyberbullying acts which occur … by use of data or software that is accessed through a computer. computer system. computer network. or other electronic technology of a local school system. acts … which occur through the use of electronic communication, whether or not such electronic act originated on school property or with school equipment, if (1) directed specifically at students or school personnel. (2) maliciously intended for the purpose of threatening the safety of those specified or substantially disrupting the orderly operation of the school, and (3) creates a reasonable fear of harm or has a high likelihood of succeeding in that purpose. For purposes of this Code Section electronic communication includes but is not limited to any transfer of signs. signals. writings. images. sounds. data or intelligence of any nature transmitted in whole or in part by a wire. radio electromagnetic. photo electronic or photo optical system. Effective on Governor’s signature 6

SB 89 – Student Data Privacy SDOE to create a Chief Privacy Officer Investigate issues of compliance by DOE and local boards, including referral to USDOE SDOE required to create data inventory and dictionary, develop policies for State, not transfer PID to any agency except as authorized, develop security plan, comply with FERPA, notify GA of new data proposed for collection and develop policies to provide for at least annual notice SDOE to develop model local policies, including complaints procedures, officer to investigate and appeal to superintendent and local board 7

SB 89 – Vendor Prohibitions An operator shall not knowingly engage in – Behaviorally targeted advertising – Amass a student profile – Sell a student’s data – Disclose PID w/o student (over 13) or parent Vendor Opportunities – LBOEs strongly encouraged by 7/1/20 to provide electronic instructional material and a device to all students or BYOD 8

HB 91 – Retroactive Diplomas Effective now, GHSGT and writing test no longer required and will no longer be given Student lacking a diploma solely as result of not passing test in the past can petition local board If eligible, but for test, shall issue diploma and may date it on issuance date or retroactively New graduates do not count for graduation rates Notice to be given for the next 3 years 9

Questions to be determined What date to put on diploma? Effect on HOPE scholarship eligibility Can the student decide the date? What about current students who can no longer take the test? How do they count for graduation rate? 10

And Parents are Opting out… No Provision in Statute, Rule, Federal Grant or otherwise that allows Opt Out But plenty of examples on the internet More success and numbers in other states Options to Respond 11

HB 502: Accountability Models Status Quo = Title 20/No Waivers District IE2 = Strategic Waivers District Almost half of districts have still done nothing Planning is Essential – What do you want to accomplish? – What do you need to accomplish it? – If Charter, what is role of local school governance? – Waivers, how to use them, what replaces them? 12

Other Legal Matters HB 502: Cleans up remaining confusion over 4/15 v. 5/15 SB 100: Removes attendance from TAADRA SB 164: encourages PBIS (think USDOE Dear Colleague letters) 13

Issues from the Federal Government 14

What to look for from Washington: Worries about Student Privacy and the Internet Go Against the Vendors Revise FERPA Will NCLB be Rewritten? Testing Concerns The Continuation of RTTT Common Core, Round Two Desegregation Compliance Reviews OCR/DOJ Reviews and Suits 15

THE EMERGING LAW REGARDING TRANSGENDER STUDENTS AND OTHER ISSUES RELATED TO STUDENTS AND SEXUAL IDENTITY 16

What is OCR’s Current Position and How Does It Define the Issues? 17

Discrimination and Harassment under Federal Law Title IX of the Education Amendments of 1972 Section 504 of the Rehabilitation Act of 1973 Title II of the Americans with Disabilities Act 18 Statutes involved include:

State of the law Many states and D.C. include “gender identity” as a protected category. Georgia does not. More and more, sex discrimination is being interpreted to include gender identity discrimination, although not specifically stated in federal law. USDOE and DOJ are taking the position that Title IX protects gender identity and gender non-conforming students. 19

June 14, 2011 Dear Colleague Letter on Equal Access “Harassment and bullying are serious problems in our schools, and lesbian, gay, bisexual, and transgender (LGBT) students are the targets of disproportionate shares of these problems.” “According to a recent survey, more than 90 percent of LGBT students in grades 6 through 12 reported being verbally harassed — and almost half reported being physically harassed.” 20

USDOE/DOJ 2/20/15 “Statement of Interest” Opposes Michigan district’s motion to dismiss Title IX/Equal Protection suit Student claims discrimination based on status as transgender male Suit alleges district: – Required student to use staff ladies’ room or unisex restroom – Said mother was “being overly sensitive” to student harassment over restroom use – Called him by female name on birth certificate; used feminine pronouns – “Outed” him to students and parents, causing him to be ostracized Asks Court to “hold that the prohibition of sex discrimination under Title IX and the Equal Protection Clause encompasses discrimination on the basis of transgender status, gender identity, and sex stereotyping.” 21 Tooley v. Van Buren Public Schools

Bathrooms and Locker Rooms: Objections by Others 22

Areas where gender segregation typically becomes an issue Restrooms, locker rooms, sports/gym classes, dress codes, overnight trips OCR and advocates recommend allowing students to use/participate in one that corresponds to their preferred gender identity/expression as much as possible. Safety of all students is primary concern. Use of unisex bathrooms 23

Questions 24