On August 25, 2021, the Massachusetts Department of Elementary and Secondary Education (“DESE”) implemented a requirement that all public school students (age 5 and above), staff members and building visitors wear a mask indoors through at least October 1, 2021.  In particular, the mandate specifies that:

• Masks should cover an individual’s nose and mouth;
• While students younger than 5 years old are not required to wear a mask, it is strongly recommended;
• Districts should honor medical and behavioral reasons that would exempt individuals from the mask requirement;
• The mask requirement does not apply indoors when an individual is eating, drinking, taking a mask break or when necessary to participate in an elective (i.e. wind instruments in band);
• Districts should have disposable masks available for students who need them;
• Consistent with a federal public health order, masks must be worn on school buses;
• Districts should consult their discipline policies and legal counsel in addressing student discipline for failure to wear a mask;
• Districts must submit a plan to DESE confirming health and safety procedures by September 3, 2021.

Lastly, the mandate provides after October 1^st, school districts that can demonstrate that 80% or more of students and staff are vaccinated will no longer be subject to the DESE mask mandate.  DESE will provide more guidance ahead of October 1^st in how school districts can demonstrate this vaccination rate.

If you have any questions regarding this mandate or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On July 19, 2021, the Appeals Court issued a decision, Bradley v. Records Access Officer, Department of State Police (20-P-0419) holding a public body violated M.G.L. c. 66, §§ 10 and 10A, (the “Public Records Law”) in ignoring an individual’s requests for public records and directives from the Commonwealth’s Supervisor of Public Records (“SPR”) to respond to the requests.

Beginning in September 2018, Adam Bradley (“Bradley”) began filing public records requests with the Department of State Police (“Department”).  The Department’s Record Access Officer (“RAO”) failed to respond to Bradley’s requests.  Bradley sought an order from SPR directing the Department’s RAO to respond to his requests.  SPR issued multiple orders, yet the RAO failed to respond despite the orders.

Consistent with the procedure set forth in the Public Records Law, Bradley filed a complaint in Superior Court alleging among other things, that the Department’s failure to respond constituted a violation of the Public Records Law.  While the Superior Court permitted the RAO’s motion to dismiss the complaint, the Appeals Court took an entirely different approach in finding  “blatant violations” of the Public Records Law.  In particular, the Appeals Court held that the RAO failed to abide by certain requirements of the Public Records Law, primarily, not issuing a response within the ten (10) business days of receipt of the request and ignoring orders from SPR to respond to the requests.  The Appeals Court also rejected the RAO’s post-hoc attempts to justify its failure to respond to the requests.

This decision serves as an important reminder for public bodies to fully understand their obligations under the Public Records Law.  Certain key responsibilities include:

• Designating an RAO to respond to public records requests;
• Issuing a response to a request within ten (10) business days of receipt of a request, which may:
  • Provide documents responsive to the request;
  • Deny the request and cite the statutory basis for denial;
  • Request clarification of the request;
  • Assess fees for time spent responding to the request;
  • Inform the requestor that additional time is needed to respond to the request.
• Understanding the distinction between a request for documents and a request for information;
• Understanding the categories of information that may be redacted or withheld in documents; and
• Understanding the distinction between the Public Records Law and Open Meeting Law as it pertains to meeting minutes.

If you have any questions regarding the Public Records Law, please contact any of the attorneys below.  We are pleased to assist RAOs in properly responding to public records requests.

This update is provided for informational purposes only and should not be considered legal advice.

On July 12, 2021, a federal judge in Indiana ruled against a former teacher who alleged that his employer, a local high school, discriminated against him when it requested his resignation after the teacher continuously refused to call transgender students by their chosen names and pronouns.

The Indiana case was precipitated by the school district’s adoption of a policy that allowed transgender students to change the first names and pronouns listed in their school records and required all staff to address students accordingly. In response to the new policy, an orchestra teacher wrote a letter to his principal stating that he could not follow the name policy due to his religious beliefs. In an attempt to accommodate the teacher, school administrators proposed that the teacher call all students by their last names only and without any gender-based titles, such as Miss or Mr. The accommodation resulted in an undue hardship to the school and evidence demonstrated that at least two students suffered because of the last-names only accommodation. Ultimately, the school could not continue the accommodation and requested the teacher’s resignation.

Following his resignation in May of 2018, the teacher asserted thirteen allegations against the school and several of its employees, including a claim that the school discriminated against him by refusing to accommodate his religious belief that prohibited him from using a transgender student’s preferred name and pronouns. The majority of those claims were dismissed, leaving only the teacher’s claims against the school for failure to accommodate and retaliation under Title VII for the teacher’s religious beliefs. The court ruled in favor of the school on both claims.

The court held that the teacher’s religious opposition to transgenderism was directly at odds with the school’s policy of respect for transgender students. Therefore, as a matter of law, the school could not accommodate the teacher’s religious beliefs. Quoting Shakespeare, the court wrote “[w]hat’s in a name? William Shakespeare suggested maybe not much, for ‘that which we call a rose, by any other name would smell as sweet.’ But a transgender individual may answer that question very differently, as being referred to by a name matching one’s identity can provide a great deal of support and affirmation.”

The Indiana decision is the most recent in a line of cases brought by teachers who claim they were unfairly disciplined for refusing to use the preferred names or pronouns of transgender students. In Massachusetts, DESE has published guidance for Massachusetts public schools on creating a safe and supportive school environment. On the issue of names and pronouns DESE advises that school personnel should use the student’s chosen name and pronouns appropriate to a student’s gender identity, regardless of the student’s assigned sex at birth.

This update is provided for informational purposes only and should not be considered legal advice.

The Specific Parameters Remain to be Developed in the Lower Courts, Including a Pending Cyberbullying Case in which VDH, Working with the NSBA, has Filed a Brief. 

 

More than 50 years ago, the Supreme Court issued a landmark decision regarding student speech rights. In Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), the Court made its famous pronouncement that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Recognizing the need for discipline and a focus on learning in schools, the Court identified two circumstances in which regulation/discipline would be appropriate: (1) where a student’s speech causes “material and substantial disruption” of the school, and (2) where the speech “infringes or interferes with” the “rights” of others.

In 1969, the internet, cell phones and social media were all decades in the future and few could even imagine how a student’s speech made from a location outside the “schoolhouse gate” – “off campus” – could nonetheless permeate the school community and affect other students. For the past two decades, the lower courts have wrestled with the task of applying Tinker to a culture in which student speech increasingly takes place through electronic media used in remote locations.

On June 23, 2021 the Court finally applied Tinker to the digital age in Mahanoy Area Sch. District v. B.L., No. 20-255 (2021). The decision is important but, not surprisingly, precise guidance for lower courts and for school districts is limited. The case decided by the Court involved one student’s post on Snapchat. It took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. There was no evidence that it had any effect on the school’s learning environment. Notwithstanding this, the school district imposed upon the student a one-year suspension from the cheerleading program. Based on these facts, the Court in an 8-1 decision held that the school’s one-year suspension of the student from cheerleading activities violated her First Amendment rights.

More important than the Court’s holding in the specific case is the Court’s further statement that “the special characteristics that give schools additional license to regulate student speech [do not] always disappear when a school regulates speech that takes place off campus.” Recognizing that certain attributes of student speech outside the school or its programs mean that schools have less “leeway” in regulating that speech, the Court has left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference.” But the Court nonetheless suggested several areas in which discipline for off-campus speech by students will still be appropriate under the First Amendment.

These include speech that involves “serious or severe bullying or harassment targeting particular individuals”, “threats aimed at teachers or other students”, and “failure to follow rules” pertaining to “online school activities.”  The Court declined to “determine precisely…the length or content of any such list of appropriate exceptions or carveouts.” The precise parameters that govern school districts’ application of Tinker to “off-campus” speech now await explication by the lower courts.

One such case is currently pending in the United States Court of Appeals for the First Circuit – Doe v. Hopkinton Public Schools, No. 20-1950. In that case several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been tangentially involved in the Snapchat posts filed suit claiming a violation of their student speech rights, but the federal district court rejected their claim, resulting in further appeal. The case has been briefed and awaits oral argument and eventual decision.

VDH attorney John Foskett has worked with the National School Boards Association in Doe v. Hopkinton Public Schools and has filed an amicus curiae (“friend of the court”) brief that urges the court to uphold the school’s discipline. In the brief, we have focused on the “second prong” in the Tinker decision, which recognizes a school’s authority to regulate student speech that infringes another student’s rights in school. The brief argues that this prong of Tinker clearly permits schools to prevent and punish cyberbullying and its harmful impacts even though the speech generally occurs “off campus.” The brief, which was filed in May 2021, asserts that the lower court’s decision in B.L. did not bar or limit a school’s power to regulate off campus speech that constitutes bullying or harassment. It now appears that the Supreme Court has expressly agreed that this is a permissible area for discipline without violating a student’s speech rights. As noted, the precise contours of that authority must be worked out on a case-by-case basis. Doe v. Hopkinton Public Schools appears likely to be one of the first federal appellate decisions to address the meaning of B.L. in this context.

As further guidance is developed, school districts must keep the following in mind before a student is disciplined for statements made on social media:

Student speech that can be regulated if it takes place during school or school programs may not be subject to discipline if it is made outside school hours and “off campus” unless it fits certain criteria, such as cyberbullying, harassment, or threats that target a specific student/students or staff.

Decisions regarding student discipline for speech that occurs outside of school should be made after consultation with the district’s legal counsel.

This update is provided for informational purposes only and should not be considered legal advice.