By Schwartz Hannum PC

Does your school’s application for admission ask potential students to provide a photograph? Are applicants required to indicate whether they are male or female? Do you promise not to discriminate against student applicants based on their genetic information? While all of these practices may be well-intended, some of them may miss the mark when it comes to avoiding discrimination and promoting diversity on campus.

Take the request for a photograph. The Internal Revenue Service (the “IRS”) notes that requiring a photograph may indicate that the admissions process is racially or ethnically discriminatory, even if that is not the school’s intent. Indeed, the IRS specifically requires private schools to include policies in their Bylaws and admissions materials, stating that the school does not discriminate based on race, color, or national or ethnic origin, as a condition of obtaining and maintaining § 501(c)(3) tax exempt status. Schools may, therefore, consider asking student candidates about their ethnicity as an optional question on an application, but should not insist on obtaining this information as a condition of admission.

Where does your state law stand on gender identity and expression? Some states prohibit this form of discrimination in public schools and many independent schools are choosing to take a fresh look at dress codes, restrooms and locker rooms with this characteristic in mind. Be sure that your school’s non-discrimination statement and application for admission are consistent with your school’s philosophy on this evolving topic. Do you need to know the gender of the applicant? You might consider increasing the number of check boxes on an application to permit a wider range of answers to the gender identity question, or include no check boxes, but ask a student applicant to self-identify in a way that best fits the applicant. Of course, in single-sex schools, this topic is significantly more complex.

Schools sometimes try to be inclusive with respect to genetic information. Under federal law, employers are generally prohibited from discriminating against employees based on genetic information; however, discrimination based on genetic information is not prohibited by independent schools toward student applicants and current students.  Though your school may not intend to evaluate students on this basis, schools are not legally required to include this characteristic as a protected class with respect to student applicants.

With schools focused on diversity and inclusion for the whole school community—based on financial need, disability, citizenship, the protected classes mentioned earlier and other characteristics—it is important to ensure that your non-discrimination statements and practices are consistent across the organization, are in sync with your school’s mission and are lawful. We recommend that independent schools review their non-discrimination policies wherever they appear—as illustrated in the list below—to ensure that they are drafted appropriately for both students and employees:

• Student/Parent Handbook(s);
• Employee/Faculty/Staff Handbook(s);
• Acceptable Use Agreements (Employees/Students);
• Bylaws;
• Employment Applications;
• Enrollment Contract; and
• Website

If you have any questions about legal compliance with respect to non-discrimination policies and diversity initiatives, please do not hesitate to contact a member of the Firm’s Education Practice Group.

by Sara Goldsmith Schwartz and Sarah H. Fay

Vaccines (and whether to vaccinate teachers and children) are hot topics of debate across the nation. The recent measles outbreak linked to Disneyland has intensified this discussion and caused a groundswell of anxiety on independent school campuses. We recommend that schools take this opportunity to implement a comprehensive Immunization And Communicable Disease policy to reflect a school’s desired practices and applicable governing laws regarding vaccination requirements and non-immunized students on campus. This will ensure that schools have the flexibility they need to respond to communicable illnesses, while also protecting the interests of students, parents, employees, and other community members.

Legal Requirements And Duties

As a preliminary matter, we advise schools to become familiar with applicable law and to determine whether their policies and practices are in compliance with legal mandates and best practices. Every state requires schoolchildren to be vaccinated against certain diseases unless they fall within an exemption based on medical reasons, religious beliefs, and/or personal or philosophical beliefs. However, the intricacies of the laws – including the required vaccines, the types of exemptions recognized, and the documentation required for proof of immunization and exemption – vary significantly from state to state.

In Massachusetts, for example, schools may not admit an unimmunized student unless that individual has satisfied the criteria for a medical or religious exemption or the individual is homeless. Massachusetts also requires schools to keep a complete and up-to-date immunization record (or the required exemption documentation) on file for every enrolled student. Other states, such as Connecticut, also require schools to annually fill out a form disclosing student immunization information to the Department of Public Health.

Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that any information on file (and/or provided to state agencies in accordance with applicable laws) is accurate.

Disclosing Immunization Information

Schools may receive requests from parents, teachers, or other individuals to provide information about student immunization rates on campus. Whether exemption rates may be tracked and/or disclosed depends upon applicable laws. Some states, such as Colorado, require schools to track exemption rates and to report this information to students’ parents directly. Other states, by contrast, only permit disclosure to designated state agencies. Connecticut requires schools to annually report student immunization information but defines this information as confidential. In Massachusetts, schools are permitted – but not legally required – to disclose student immunization rates to the Department of Health, which, in turn, makes this information publically available. In some states, disclosure to parents, teachers, or other individuals may violate students’ privacy rights.

Hence, understanding when a school should disclose information, and to whom it may disclose it, is an important component of managing legal risks in this area. Addressing this as part of a comprehensive policy will not only help the school avoid unauthorized disclosure of confidential information, but will also reassure parents who may be concerned about children’s privacy and even deter individuals from asking for immunization information.

Policies For Exclusion Of Non-Immunized Students

Perhaps the most contentious issue that schools will confront is whether a non-immunized student will be excluded from campus, and if so, under what circumstances. Some independent schools have sought to prohibit any non-immunized student from enrolling, regardless of whether the individual meets the state’s exemption criteria. This approach could create potential legal claims, such as discrimination or breach of contract. Moreover, this approach may seem too Draconian.

Accordingly, we recommend implementing a policy that reserves the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or any other communicable disease incident. The goal with such a policy is to provide the school with a wide degree of latitude in responding to situations on campus that affect members of its community. Equally important, the policy will provide parents with notice of the school’s right to act.

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An Immunization And Communicable Disease policy can effectively address all of these issues to ensure that the interests of the school, its students, and its employees are well protected. A well-crafted policy will withstand the future unknown: whether it is measles, Ebola, or any other number of communicable diseases making the headlines, a school can rely upon this policy to adequately and effectively respond.

Finally, another component to an effective risk management strategy is to provide the school with grounds to manage or exclude staff and faculty when the threat of a communicable disease arises. As such, this may be an opportune time to visit the employee handbook’s communicable illness provision to determine if it is in sync with the school’s goals and best practices.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for complying with state vaccine legislation and/or managing non-immunized students on campus, or if you would like our assistance in drafting an Immunization And Communicable Disease policy.

By Sara Goldsmith Schwartz

Should the EEOC be allowed to send an e-mail to 1,000 employees of a company, at their work e-mail accounts, to hunt for evidence against the company?  One New York employer has sued the EEOC in federal court challenging the EEOC’s use of this tactic.

The EEOC’s e-mail told employees that the EEOC was investigating claims of discrimination by the employer, and contained a link to an internet survey about the employer.  The employer apparently did not receive advance notice of the email, and the email did not specify that the EEOC’s inquiry was limited to age discrimination claims and that no finding of discrimination had been made.

The employer sued the EEOC pursuant to the Administrative Procedures Act and the U.S. Constitution, claiming that the e-mail was an abuse of power, an unreasonable search in violation of the Fourth Amendment, and an infringement on the employer’s constitutional right to due process.  The lawsuit seeks an injunction that would prohibit the EEOC from using any information it gathered through the mass email.

The EEOC has moved to dismiss the suit, arguing that other methods of communication would have had the same impact, and that the e-mail was within the EEOC’s investigative power.  The court has not yet ruled on the motion.

By Sara Goldsmith Schwartz

Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.