The discrimination that lawyer for school issues Greg Smith sees most often is discrimination on the basis of disability.
The United States Constitution forbids discrimination by public officials. Public schools and colleges in Connecticut receive federal funding, so they count as “public officials” subject to federal laws against discrimination. They cannot treat students differently simply on the basis of their disability, race, sex, ethnicity or national origin. When officials do not give students in schools and colleges the accommodations to which they are entitled, they violate Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (the two laws prohibit similar behavior and provide the same remedies).
An experienced lawyer for school issues knows that 504 plans frustrate students in the way they are carried out. To receive a plan a students must have medical proof of a physical or mental impairment that substantially limits a major life activity (attending classes counts as such an activity). But even with such a plan in place, officials often fail to follow it. For example, a student whose disability prevents him from getting to school early enough may have in his plan the accommodation, as long as he does the work, to arrive to class late. Such an adjustment normally provokes resistance from teachers and instructors. Consequently they wrongly mark the student absent and threaten to withhold credit. In situations like this education lawyer Gregory Smith has often had to advise the student or his family to be prepared to fight administrators to have the accommodation enforced as written.
Accommodations must give a disabled child the chance to get an education just as good as any other student’s. When they don’t, a lawyer for school issues like Greg Smith advises clients they have the right to sue in state or federal court. They also have the right to sue when officials discriminate, or allow others to discriminate, against a student simply for their disability. Mr. Smith has represented families in claims against their child’s district for violence or ridicule directed against the disability.
If you believe your child’s school or your college violated their constitutional rights, call an experienced civil rights attorney for an assessment of your case.
As a lawyer for school issues Greg Smith advises clients that due process means officials at schools and colleges must publish in the handbook the procedures they will follow. Students have a right to rely on fair application of those procedures. When officials fail to follow procedure in imposing discipline, investigating sexual harassment or administering academic programs, they violate students’ Fourteenth Amendment right to due process. Administrators must provide a fair hearing in accordance with published procedures. That provision includes the opportunity to confront witnesses and present favorable evidence. In public schools it also includes the right to private counsel. In college and university hearings it includes the right to have an advisor that can confer with the student but not speak for them.
Private schools, colleges and universities can depart from due process in discipline in three ways. First, apart from its overall obligation to provide a reasonable educational program, the institution makes a specific contractual promise to conduct the disciplinary process as stated in its handbook. Second, the administration cannot substantially depart from academic norms. School officials have the right to exercise their professional judgment, but they do not have license to act arbitrarily or capriciously in their procedural mechanisms. Third, every contract carries an implied covenant of good faith and fair dealing. An administration cannot use bad faith in conducting disciplinary proceedings without injuring the right of the other party to receive the benefits of the agreement.
Title IX prohibits any public school, college or university from discriminating on the basis of sex. It protects students — male and female — from all forms of sex discrimination, including sexual harassment and gender discrimination. A school’s grievance procedures must include adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence.
This process must be fair and equitable. That means, for example, that the school must corroborate the complainant’s accusations. It means the school must show the touching was unwelcome. Most importantly, it means the school must prove harassment by a preponderance of the evidence. At the same time, if a school fails to investigate accusations, or deliberately remains indifferent to them, the victim has the right under Title IX to hold the school accountable. A student involved in sexual harassment should immediately contact a lawyer for school issues like Greg Smith to guarantee the protection of their rights.
As of today schools in Connecticut will not violate Title IX if they tell transgender students to use the bathroom of the sex they were born with.
Title IX itself says nothing about the choice. Starting in 1972 it simply outlawed discrimination “on the basis of sex.” A regulation later added only that public schools must offer separate bathrooms, lockers and showers. No authority ever made clear who should use which ones.
President Obama tried to. In 2015 an official in his administration wrote that “on the basis of sex” meant schools must let each student choose, not by their biological sex but by the one with which they identified. A year later Obama’s departments of Education and Justice jointly and formally announced they held to the same interpretation of Title IX’s phrase. This swayed some people. In April 2016 a federal appeals court in Virginia ruled that a high school had to let a transgender student born a girl use the boys’ bathroom. It decided that “on the basis of sex” was ambiguous and could be interpreted however the President wished. Others disagreed. In August a different federal court, in Texas, took the opposite stance. It held that the phrase was not ambiguous. Obama could not tell schools to read it his way.
With a new President came a new position. In February 2017 the Trump administration made Justice and Education withdraw their earlier interpretation. They have not issued a new one. That leaves schools free to declare that “on the basis of sex” means biological sex. The United States Supreme Court took note of the change in interpretation. It had agreed to hear the Virginia case, but after the change it sent the case back to the lower court.
Since then a third court has formally decided the meaning of “on the basis of sex.” A federal appeals court in Chicago ruled that a transgender student in Wisconsin could sue for an order allowing them to use the boys’ bathroom. It stated that “sex” could mean the one with which they identified. The Wisconsin school district has appealed the case to the Supreme Court for a definitive ruling. Until that happens, schools are free to interpret the statute however they wish.
If you believe you have the right to choose, contact a skilled and experience lawyer for school issues.