# data[].attributes.body
Upon completion of my Master's in Guidance and Counseling I would like to continue in my current role as an elementary school counselor. I intend to apply for my counseling certification through the Arizona Department of Education; I will be one of only two certified school counselors in my district.

# data[].attributes.headline
Step 2, Option 1: Professional Interview Top 5 Learning Points

# data[].attributes.subject
Step 2, Option 1: Professional Interview Top 5 Learning Points

# data[].attributes.body
I interviewed the former lead counselor of the alternative to suspension program, Diane Peters. She currently provides district-wide consultation, support, and training for school counselors. During our discussion, I noted the top five things I learned regarding legal and ethical issues in our role as K-8 school counselors:

1. There are no district policies or rules specific to school counselors. The only guidance is provided by the American School Counselor Association (ASCA), and by your administration. This presents challenges for school counselors navigating the constantly changing legal and ethical issues in education.
2. Managing confidentiality and the ethical issues surrounding it are challenging in K-8 school counseling. There are constant considerations of what information to share with parents and staff, and if it is ethically necessary. All of this has to be balanced with the focus on the best interest and safety needs of the child.
3. Legality surrounding relevant issues is constantly changing and evolving so it is important to stay current. Recent issues include: social media, school safety, and bullying.
4. As a school counselor, your reports to DCS and notes are not completely confidential. They can be subpoenaed, and parents can then put children in the middle of their own legal battles such as with divorce or child custody.
5. There was an emphasis on the importance of seeking out and finding training to stay up-to-date on legal issues in education. Our district does not provide training, but does have attorneys on staff if you have questions. My interviewee recommended attending the yearly law conference offered by the school board association; it focuses on current legal issues you may encounter in education.

Peters, D. (2018, June 7). Personal interview

# data[].attributes.body
A trending legal topic is transgender student rights. There have been numerous law suits against school districts related to this topic. As a school counselor, it is important to stay current and understand the current laws as I may work with transgender students and their families.

# data[].attributes.attachment_link.readable_text
Rulings trend against emerging Trump position

Two recent federal court rulings add to the growing body of decisions that find legal protections for transgender students in federal antidiscrimination laws and that run counter to the views emerging from President Donald Trump's administration on the issue.

In late May, a federal appeals court refused to block a Pennsylvania school district's policy of permitting transgender students to use the restrooms or locker rooms consistent with their gender identity. One unusual aspect of the case involving the Boyertown Area School District is that a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously from the bench, about a half hour after hearing oral arguments on May 24, to reject an injunction sought by a group of students who contend the district's pro-transgender policy harms their privacy.

The court issued a brief written order the same day stating that a formal opinion would follow but that it was embracing the reasoning of the federal district judge in the case, who had rejected the privacy arguments of the students opposing the Boyertown district's transgender-inclusive policy.

Earlier that week, on May 22, a federal district judge in Virginia ruled in favor of a female-born transgender teenager, Gavin Grimm, who challenged his school district's policy of barring him from using the restrooms for males.

"This court joins [other federal district and appellate courts] in concluding that claims of discrimination on the basis of transgender status are per se actionable under a gender stereotyping theory under Title IX" of the Education Amendments of 1972, said the decision by U.S. District Judge Arenda L. Wright Allen of Norfolk, Va., in the case involving the Gloucester County, Va., school district.

The judge also found that the 14th Amendment's guarantee of equal protection of the law applied to transgender students.

"Since the new administration came into office in 2017 and began revoking guidance [on transgender legal protections under Title IX], court after court has held that the statute itself protects trans people and LGB [lesbian, gay, and bisexual] people from discrimination, and that you don't need that agency guidance," said Joshua A. Block, a senior staff attorney with the American Civil Liberties Union's LGBT and HIV Project, who represents Grimm.

Seeking Further Clarification

The Trump administration did not file briefs in the Boyertown or Gloucester County cases (nor in other pending transgender cases). But a range of actions since Trump took office in January 2017 have fueled the view that the administration does not support an interpretation of Title IX that covers transgender discrimination.

U.S. Secretary of Education Betsy DeVos told a House education committee hearing on May 22 that court precedent was mixed on the issue of legal protections for transgender students and that neither the U.S. Supreme Court nor Congress had settled the question.

"That is not an area where law has been clarified," DeVos said. "I am not going to make up law from the Department of Education."

In early 2017, the Trump administration rescinded Education Department guidance issued under President Barack Obama that interpreted the department's Title IX regulations to require schools to allow transgender students to use the restroom and locker rooms consistent with their gender identity. This past February, the department indicated that its office for civil rights will no longer investigate complaints from transgender students related to restroom discrimination.

However, DeVos has repeatedly said that all students, including transgender students, deserve protection from bullying and unfair treatment in schools.

While the Trump administration has not yet fully formalized its views on the protection of transgender students under Title IX, there are other clues about the direction it is headed.

Wave of Rulings

Just as there has been much litigation over Title IX and transgender students in recent years, there has been a wave of lower court rulings interpreting the protection against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 to cover cases of bias against gay workers.

In a case involving a gay employee of a New York state skydiving company who alleged discrimination by his employer, the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled in February that "sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination."

The U.S. Department of Justice under Trump filed a friend-of-the-court brief in the case arguing that discrimination based on sexual orientation is not sex-based bias covered by Title VII.

"An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex," the administration's brief argued. "Gay men and women are treated the same, and straight men and women are treated the same."

The skydiving company on May 30 filed an appeal with the Supreme Court. The legal analysis of sex discrimination in Title VII has been influential for those courts that have ruled on Title IX and transgender students as well.

In ruling in the Grimm case in May, Judge Wright cited Title VII more than 20 times as she held that Title IX prohibition against discrimination "based on sex" in federally funded education programs encompasses bias against transgender students.

"Allegations of gender stereotyping are cognizable Title VII sex discrimination claims and, by extension, cognizable Title IX sex discrimination claims," Wright said.

The ACLU's Block said that while Wright's decision clears the way for a trial in Grimm's case, the main issue of dispute between the parties is the legal question that the judge decided-that Title IX protects transgender students against discrimination.

While Grimm's case is an example of a transgender student challenging what he views as an oppressive school policy, the Pennsylvania case is an example of the main other type of lawsuit in this area: one brought by students claiming that pro-transgender school policies harm their privacy to use facilities among peers of their same birth gender.

"Sex in federal law has always referred to the biological difference between men and women," said Christiana Holcomb, a lawyer with Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that backs several student privacy lawsuits around the country. "Those courts that have ruled to the contrary are out of step with the plain meaning of Title IX."

Holcomb and the ADF are representing four students in the Boyertown district who object to a policy, adopted during the 2016-17 school year, of allowing transgender students to use facilities consistent with their gender identity.

In court papers, the ADF argued that the school district's policy favored "a subjective continuum of genders" that "eliminates the law's longstanding respect for the anatomical differences between the sexes."

"We're trying to protect the privacy rights of every student, including transgender students and our clients," said Holcomb. "School districts have a duty to protect the privacy and dignity of everyone in their schools."

Mara Keisling, the executive director of the National Center for Transgender Equality, an advocacy group based in Washington, said "the trends in the courts are absolutely clear: They are ruling again and again with us."

"School districts have to deal with the reality that trans students exist," she said. "They have to operate within the reality that there is a Title IX, and it's very, very clear based on decision after decision that trans people are covered by it. Most schools are doing the right thing."

Published in Print: June 6, 2018, as Courts Take Expansive View In Transgender-Rights Cases

Please enable JavaScript to view the comments powered by Disqus.
Back to Top

# data[].attributes.attachment_link.title
Courts Take Expansive View in Transgender-Rights Cases

# data[].attributes.attachment_link.description
Two recent federal court rulings add to the growing body of decisions that find legal protections for transgender students in federal antidiscrimination laws and that run counter to the views emerging from President Donald Trump's administration on the issue.

# data[].attributes.body
Another legal issue that is trending surrounds the walk outs and strikes in Arizona, Colorado, Oklahoma, and West Virginia. I experienced this first-hand in May; our schools shut down for six days during a teacher walk out. We spent those days as a staff lobbying to Arizona legislators resulting in a budget increase for education. I had not previously considered the legal ramifications for districts, administrators, or teachers.

# data[].attributes.attachment_link.readable_text
Dive Brief:

Teacher strikes that have spread to several states have often put administrators in the position of supporting their staff but still grappling with ways to handle the disruptions caused by the days they schools are shut down, District Administration reports.

All 55 superintendents in West Virginia supported teachers when they were out for nine days in February, but then had to make up the days under state law, canceling spring break and using teacher professional development days. The strike by teachers in Oklahoma disrupted testing, for example, and some also worry students who rely on meals at schools missed them.

One expert says administrators should work with teachers to understand their concerns, should prepare for work stoppages, and should communicate accurately and quickly with students, families and the community if there is a job action. They should also have a "trusted peer" with whom to consult.

Dive Insight:

The Wall Street Journal has recently reported that, in Arizona, administrators had to soothe parents who were irked by the strike because their students were out of school. And in Colorado, administrators closed schools preemptively when work stoppage involved teachers taking sick days and protesting in other ways to avoid the state's ban on strikes.

Often, administrators have supported teachers - notably in Tulsa, OK, where both the Washington Post and Education Week reported that the superintendent believed the teacher demands for higher pay and more money for education were legitimate. Deborah Gist joined protesters at the state capitol and spoke to legislators.

While administrators must make a decision about simply being supportive of their staff when they are considering a job action, they also may back them because in many instances they are asking for more school funding and support for students.

Georgetown professor Joseph McCartin, the director of the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University, has said that such labor actions are "bargaining for the common good" because they go beyond the personal issues and are address issues important to our communities and help point to shared goals.

# data[].attributes.attachment_link.title
Administrators face dilemma in supporting striking teachers amid disruption

# data[].attributes.attachment_link.description
Teacher strikes that have spread to several states have often put administrators in the position of supporting their staff but still grappling with ways to handle the disruptions caused by the days they schools are shut down, District Administration reports.

# data[].attributes.body
A current legal issue in education that directly impacts my students and my role as a school counselor is cyberbullying.  I chose to focus on this topic since it is an evolving legal issue within education, and it is increasingly common within our schools.

# data[].attributes.headline
Step 4: Cyberbullying: A Review of the Legal Issues Facing Educators

# data[].attributes.subject
Step 4: Cyberbullying: A Review of the Legal Issues Facing Educators

# data[].attributes.headline
Step 5: Summary of Cyberbullying Research

# data[].attributes.subject
Step 5: Summary of Cyberbullying Research

# data[].attributes.body
Schools are facing increased instances of cyberbullying and have to examine the legal and ethical issues of addressing this, especially as most offenses occur off school property (Hinduja & Patchin, 2011). Addressing cyberbullying is partnered with the challenge of supporting the first amendment right of free speech. The article presented by Education World, (2013), further details the importance of knowing the differences of cyberbullying laws in each state. These laws are often changing with the current trends and evolution of social media, pointing to the importance of school counselors and administrators staying up-to-date on current legal issues.

School districts need to have policies in place to address cyberbullying between students. These policies provide a framework for consistency within a district, and can be drafted by an attorney familiar with cyberbullying and first amendment right laws. Since most cyberbullying happens outside of school, in order for a school district to intervene they must show there is a substantial interference to the learning environment (Hinduja & Patchin, 2011). As school counselors and educators, we have an ethical obligation to provide students with a safe learning environment. If a student is being impacted by cyberbullying it is our duty to report it, and to act according to policy and legal authority to protect our students.

# data[].attributes.headline
Step 4: Cyberbullying and the Law: What Should School Leaders Know

# data[].attributes.subject
Step 4: Cyberbullying and the Law: What Should School Leaders Know

# data[].attributes.attachment_link.readable_text
Student cyber-bullying is a top concern, but since it typically happens off school grounds, it can be tricky for administrators to know when and how to intervene. We asked Attorney Margaret Paget (at right), former Partner and Co-Chair of the Employment Group at law firm Sherin and Lodgen, to shed some light on relevant laws, which vary by state.

Since cyber-bullying often happens off school grounds, not on school computer equipment, and outside of school hours, what can K-12 schools really do in terms of getting involved? Can they, for example, discipline perpetrators?

The answer to this depends partly on the laws of the state in which the school is located, and also whether the school is a recipient of federal financial assistance and therefore subject to Title IX of the Education Amendments Act of 1972 (typically public schools). More than half the United States have in place laws against cyber-bullying. In May 2010, Massachusetts enacted legislation prohibiting bullying in Massachusetts schools. The law prohibits bullying, including cyber-bullying that occurs outside of school when it affects student life within school, and requires all schools to create anti-bullying plans, investigate and discipline bullying, and notify parents and local law enforcement when appropriate.

While some states, such as Massachusetts and Illinois, hold that their bullying prevention laws apply to both private and public schools, other states differ. For example, in Iwenofu v. St. Luke School, an Ohio Court held that private schools have "broad discretion in making rules and setting up procedures to enforce those rules."

If K-12 schools know that cyber-bullying is occurring, but it happens off school grounds, not on school computer equipment, and outside of school hours, is the school legally liable for failing to take measures to stop it, failing to notify parents, etc.?

Again, this depends on the laws of the particular state and whether the school is subject to Title IX. In Massachusetts, schools are required by law to address complaints of cyber-bullying, including those that occur outside of school, when the conduct affects a student's school life. Although the Massachusetts anti-bullying law does not provide for damages or other relief, a school's failure to address bullying in accordance with the law may be a basis for claims under other legal theories such as negligent supervision or negligent hiring, or under Title IX.

If a K-12 school intervenes in a case of off-campus cyber-bullying, couldn't it be accused of violating the perpetrator's privacy and/or free speech rights?

This is more a concern of public schools, which are subject to the First Amendment and so must not violate First Amendment rights such as freedom of expression. In Kara Kowalski v. Berkeley County Schools, et al., a student was suspended for creating a hate Web site that targeted another student. The suspended student sued the school district, alleging that it had infringed on her First Amendment free speech rights. The Fourth Circuit held that the speech created actual or reasonably foreseeable "substantial disorder and disruption" at the school and was therefore not the type of speech that merited First Amendment protection.

Speech or other forms of expression loses its protection under the First Amendment only when the conduct "substantially interferes with requirements of appropriate discipline in the operation of the school." Conduct that is considered disruptive, foreseeably disruptive, or that poses a "true threat" does not fall within First Amendment protection. For example, in D.J.M. v. Hannibal Public School District #60, a student made alleged threats to shoot other students and sued the school for violating his First Amendment right for his subsequent suspension. The court held that the speech constituted a "true threat" statement and would have reasonably led school officials to substantially disrupt school activities in response.

Are there laws specifically prohibiting cyber-bullying, or would the behavior fall under other more general types of laws such as those prohibiting cyber-stalking, etc.? What kinds of charges could be filed against perpetrators of cyber-bullying? If the perpetrator is a juvenile, what happens?

As set forth above, cyber-bullying is expressly prohibited in more than half the United States. For states that have enacted such laws, perpetration of the act is generally considered a crime. And in certain circumstances, cyber-bullying may violate Title IX. Almost all states have cyber-stalking or cyber-harassment laws that prohibit threatening or harmful use of Internet, email and other electronic forms of communication. Depending on the age of the perpetrator, a student may be charged as an adult or prosecuted in juvenile court. In the tragic Massachusetts case surrounding the cyber-bullying and eventual suicide of high school student Phoebe Prince, six classmates were indicted as adults on felony charges that included stalking and criminal harassment.

Related resources

Education World®
Copyright © 2013 Education World

# data[].attributes.attachment_link.title
Education World: Cyber-Bullying and the Law

# data[].attributes.attachment_link.description
Student cyber-bullying is a top concern, but since it typically happens off school grounds, it can be tricky for administrators to know when and how to intervene. We asked Attorney Margaret Paget (at right), former Partner and Co-Chair of the Employment Group at law firm Sherin and Lodgen, to shed some light on relevant laws, which vary by state.

# data[].attributes.body
Education World. (2013). Cyberbullying and the law: What should school leaders know. Retrieved from http://www.educationworld.com/a_admin/cyber-bullying-legal-issues-liability-schools.shtml

Hinduja, S., & Patchin, J. W. (2011). Cyberbullying: A review of the legal issues facing educators. Preventing School Failure, 55(2), 71-78. doi:10.1080/1045988X.2011.539433

Paterson, J. (2018). Administrators face dilemma in supporting striking teachers amid disruption. Education Dive. Retrieved from https://www.educationdive.com/news/administrators-face-dilemma-in-supporting-striking-teachers-amid-disruption/523734/

Walsh, M. (2018). Courts take expansive view in transgender- rights cases. Education Week. Retrieved from https://www.edweek.org/ew/articles/2018/06/06/courts-take-expansive-view-in-transgender-rights-cases.html?qs=legal