The First Four Weeks: What We Know So Far

During the first month of the Trump presidency, the news headlines have been

filled with things the new president has done and how the country is responding to

those actions. There’s a lot of noise out there, but there were not many changes

of substance for schools. That has changed over the past few days. We have

sorted through the executive orders and other actions to date and want to pass

along this update on the education-related issues which are evolving in Trump’s


DOJ/DOE Repeal Transgender Guidance. On February 22, the Departments of

Justice and Education (DOJ and DOE) withdrew two prior guidance documents

regarding the rights of transgender students in schools. The more famous of the

two documents, the “Dear Colleague Letter” released in May 2016, is the letter

which definitively stated the enforcement positions of both departments and

prohibited schools from doing things like prohibiting transgender students from

using facilities (like restrooms and locker rooms) consistent with their gender

identity as opposed to their biological sex. Combined with the passage of the

Nebraska School Activity Association policy on participation of transgender

students in school activities, this issue got a lot of attention and news headlines in

Nebraska and nationwide. Now, those guidance documents have been repealed.

You can find the DOJ’s letter repealing the transgender guidance here, and the

DOE’s version here. A general theme of the statements by the DOJ and DOE is

that “there must be due regard for the primary role of the States and local school

districts in establishing education policy.” The agencies have vowed to “more

completely consider the legal issues involved.”

The focus now turns to two issues: first, how the DOJ and DOE will enforce Title IX

with respect to transgender students, and second, what will happen with cases

making their way through the court system in light of the withdrawal of the

guidance document. In particular, the G.G. v. Gloucester County School Board

case is set for argument before the Supreme Court on March 28, 2017. The G.G.

case may still answer some of the legal questions on this issue, but more will

become clear on that in the coming weeks. For now, our sentiment on this issue

remains the same. It’s best to proceed slowly and with caution until there is more

certainty. Schools have always done what’s best for all students and addressed

student needs on a case-by- case basis. We continue to think that approach makes

a lot of sense.

Supreme Court Rules in Fry v. Napoleon. Speaking of the Supreme Court, on

February 22, the Court ruled in the case of Fry v. Napoleon. This case asked an

important question for public schools: if students and parents file a lawsuit under

the American’s with Disabilities Act (ADA) or the Rehabilitation Act (which includes

Section 504) for something like denying a service dog, are they first required to

“exhaust their administrative remedies” by challenging a school’s special education

decision in an administrative hearing prior to going to court. The Court answered,

“no,” the importance of which is best illustrated by the facts of the case.

The Fry’s daughter was diagnosed with cerebral palsy. When she was 5 and

getting ready to enroll in kindergarten, her parents bought her a service dog (a

goldendoodle named Wonder) to assist her at school. The school denied the

request, saying they had staff members and programs which would be able to

assist a young kindergarten student with everything the dog was going to do, like

help the student use the bathroom and pick up things she had dropped.

Under the Individuals with Disabilities Education Act (IDEA), parents are not

allowed to challenge a school’s decisions in court until they first challenge them in

the state’s administrative proceedings. In Nebraska, for example, if a school made

an IEP decision which parents disagreed with, the parents would first have to go

through a hearing in front of a Nebraska Department of Education hearing officer

or some similar process before they went to court. That’s because the IDEA, as

opposed to the other disability protection laws, requires the administrative process

to determine if there was a denial of a “Free Appropriate Public Education” (FAPE)

before lawsuits can be filed. The other discrimination laws, like the ADA and

Rehabilitation Act, don’t have that requirement.

In this case, the Frys skipped the IDEA administrative challenge process and filed

a lawsuit in a Michigan federal court under the ADA and Rehabilitation Act. The

school’s argument was simple: courts can’t decide if the school violated the

student’s rights under the disability laws until the parents challenge the school’s

decision through the administrative process. The school initially won the case, but

yesterday the Supreme Court reversed the lower courts and said the analysis of

whether the administrative exhaustion is required must be made on a case-by-

case basis, considering the substance of the challenge made by the parents.

This is a significant case for schools who may face challenges to their decisions

regarding special education services under the IDEA and other accommodations

made under the ADA and the Rehabilitation Act. While this may not lead to more

complaints, it provides a clearer path forward to analyze the requirements prior to

a lawsuit for both schools and families.

PPACA (aka “Obamacare”) Repeal Process. As business officials across

Nebraska finalize their PPACA reporting forms, there have been several

Congressional hearings on the various aspects of replacing Obamacare and/or

fixing aspects of the federal healthcare laws and markets. This will be an issue to

monitor moving forward due to the decisions made by boards to comply with

Obamacare the last several years. For now, the law remains in effect, but the

Trump Administration continues to promise that an alternative proposal will be

rolled out soon.

ESSA Regulations Delayed and Challenged. Recently, Congressional

Republicans have introduced measures to delay some of the prior administration’s

proposals to implement the Every Student Succeeds Act, which replaces No Child

Left Behind. These include efforts to rescind school accountability and teacher

training regulations.

The Trump administration has also delayed these and other regulations

implementing ESSA. Several sets of regulations were set to go into effect in

January, but the administration delayed their implementation in order to review

them. While they focused primarily on issues which did not immediately impact

schools, the statement by the DOE was important:

In accordance with the memorandum of January 20, 2017, from the

Assistant to the President and Chief of Staff, entitled “Regulatory

Freeze Pending Review,” published in the Federal Register on

January 24, 2017, the Department delays the effective dates of the

following regulations until March 21, 2017: ...Accountability and

State Plans (ESSA Accountability and State Plans)...; Open

Licensing Requirement for Competitive Grant Programs (Open

Licensing)...; and Family Educational Rights and Privacy Act


Additionally, the administration dispensed of the standard “notice and comment”

functions of rulemaking for these regulations. This may signal that regulations will

go into effect without comments from interested groups—which could be good or

bad for schools.

We will keep you updated on the latest policy initiatives which may be arriving

from Washington or Lincoln. If you have questions about these issues or others,

we recommend that you consult with your school district’s attorney or call Karen,

Steve or Bobby.