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School and Higher Education Law Newsletter

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US Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX


On October 28, 2016, the U.S. Supreme Court agreed to hear the appeal of the 4th Circuit’s decision in the G.G. v. Gloucester County School Board (discussed in our Client Alert dated August 8, 2016), which will clarify the status of the law and split in lower court decisions. The U. S. Supreme Court announcement follows current Wisconsin federal court action surrounding the Kenosha School District and transgender school issues.

A Wisconsin federal court has now issued two decisions as a result of a transgender student’s lawsuit against Kenosha Unified School District. Student Ashton Whitaker, who identifies as male, sued the District alleging that the District treated him differently from other students based on his gender identity, his status as a transgender person, and his non-conformity to male stereotypes, contrary to Title IX. Whitaker further brought a §1983 claim, alleging that this disparate treatment as compared to similarly situated students violated equal protection under the 14th Amendment to the Constitution.

United States Eastern District of Wisconsin Court Judge Pamela Pepper denied the District’s motion to dismiss the lawsuit at its infancy stages and then, days later, issued an injunction prohibiting the District from disallowing him from using the boy’s bathroom. While these two decisions are not final, they are the first indications of how a court governing our school districts in Wisconsin would interpret the application of Title IX and transgender status related to sex discrimination claims within the public school context.

The Court decision initially reviewed the definition of the term “sex” under Title IX, which prohibits discrimination “on the basis of sex” for any education program or activity receiving federal financial assistance. In interpreting the term, the Court noted that two separate dictionaries had varying definitions of the term “sex” and that the 4th Circuit Court of Appeals decision in the G.G. v. Gloucester County School Board Virginia case struggled with the same problem.

Judge Pepper noted that the 7th Circuit, which includes Wisconsin, has not ruled on the application of Title IX to transgender students. As such, she reviewed cases from the 7th Circuit and U.S. Supreme Court under Title VII (a similar discrimination law applicable to the employment law context). However, the Title VII cases provide contradictory interpretations of whether the term “sex” includes transgender persons. Judge Pepper also made note of the conflicting decisions out of Texas (discussed here) and the 4th Circuit G.G. case regarding whether sex discrimination includes transgender persons, but indicated that she only needed to decide whether the student’s claims are plausible at this stage of the litigation.

Judge Pepper then discussed the deference required with regard to the Department of Education’s Dear Colleague Letter issued on May 13, 2016, which has been a focus of the recent legal disputes. Judge Pepper ruled that the term “sex” was ambiguous, consistent with the 4th Circuit’s reasoning in the G.G. case, and, therefore, the Dear Colleague Letter was entitled to deference because it was not inconsistent with the law and regulations under Title IX.

Another aspect of Judge Pepper’s decision was her conclusion that the student alleged enough facts to sustain a sex stereotype, also known as a gender non-conformity claim. The Court determined that the District treated the student differently because:

  1. he did not conform to gender stereotypes associated with being a biological female when the District suggested that he use bathrooms other students were not required to,
  2. subjected him to surveillance of his bathroom use, and
  3. initially refused to allow him to stand for prom king.

A sex stereotype claim is a separate and distinct type of claim from a claim of sexual orientation as “sex” discrimination. This type of claim frequently leads to inconsistent legal decisions because courts throughout the country struggle with the distinction and the unique case by case analysis.

The Kenosha Unified School District’s motion to dismiss was denied by Judge Pepper. The student’s equal protection claim may proceed forward now because he alleged enough facts to demonstrate to the Court that he was discriminated against relative to other males by not being allowed to use facilities that other males use. Judge Pepper issued an injunction a few days later, after another hearing, prohibiting the District from barring the student from using the men’s bathroom.

The Kenosha Unified School District has appealed the decision, and now the U.S. Supreme Court has waded into this issue. In the meantime, districts should tread carefully if presented with any matters concerning the implementation of Title IX and consult legal counsel to assist in light of the decisions involving a Wisconsin school district and the U.S. Supreme Court’s involvement. Please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig, at 920.431.2242 / with any questions. We will continue to monitor and provide updates.

Court Denies Teachers’ Attempt at Pre-Act 10 Protections

In a resounding success for Wisconsin school districts, another attempt by the Wisconsin Education Association Council to use the courts to re-insert pre-Act 10 collectively bargained terms into individual teaching contracts has been rejected.

In Marks, et al. v. Board of Education of the Wisconsin Rapids Public Schools, Wood County Case No. 14-CV-205, three teachers, represented by attorneys employed by WEAC, claimed their individual teaching contracts were illegal for three reasons. First, they claimed that a for-cause termination standard is inherent in all individual teaching contracts, deeming the arbitrary and capricious standard in their contracts illegal. Second, they argued that by reserving the right to change employee benefits during the contract term, the District failed to fix their wages in violation of Wis. Stat. § 118.21. Finally, they asserted that the nonrenewal of an individual teaching contract is a termination to which the District’s grievance procedure under Wis. Stat. § 66.0509 applies.

The Court, Portage County Circuit Judge Robert J. Shannon, presiding, rejected each of the plaintiffs’ claims. He first held that no Wisconsin law (statute, case law, or otherwise) provides teachers with a mandatory for-cause termination protection. Rather, he agreed with the District’s argument that the parties are free to decide upon a termination standard and embody it in the individual teaching contract. Any for-cause standard previously held by teachers was a creature of collective bargaining, and had the legislature ever intended to mandate such a standard, it would have done so.

Next, Judge Shannon held that benefits are not “wages,” as that term is used in Wis. Stat. § 118.21, as no law has ever stated as such. Employee benefits, therefore, need not be fixed, and the legislature must have intended to provide school districts with the ability to negotiate benefits on an individual basis. The plaintiffs’ individual teaching contracts, therefore, do not violate Wis. Stat. § 118.21.

Finally, Judge Shannon squarely rejected the notion that teacher nonrenewals are grievable under Wis. Stat. § 66.0509. Again relying on legislative intent and statutory construction, he found it clear that the Wisconsin legislature did not intend for Section 66.0509 to apply to nonrenewals, as it did not specify as such. To decide otherwise, according to Judge Shannon, would deem Wis. Stat. § 118.22 and its specific nonrenewal procedures meaningless, an untenable result.

WEAC chose to not appeal this decision to the Wisconsin Court of Appeals, likely deciding against the risk of an unfavorable appellate outcome that would set statewide precedent. This decision is largely consistent with the holdings in a prior WEAC challenge which was similarly rejected in Catherine Allen-Schneider et al v. Board of Education of the Howard-Suamico School District, venued in Brown County. Both Districts were represented by Davis & Kuelthau, s.c.

If you have any questions about this article, please contact your Davis & Kuelthau, s.c. attorney or the authors, Robert W. Burns at 920.431.2224 / or Anthony J. Steffek, at 920.431.2237 /

Playing with Fire – Are You Using PBIS Appropriately with Disciplinary Removals?

In August, the U.S. Department of Education’s Office of Special Education Programs (OSEP) released guidance regarding the use of positive behavioral interventions and supports (PBIS) in individualized education programs (IEPs). OSEP outlined schools’ obligations in providing PBIS to ensure that students with disabilities are receiving Free Appropriate Education (FAPE) under the Individuals with Disabilities Education Act (IDEA). It is critical that districts are aware of OSEP’s concerns over proper consideration of behavioral supports to address a student with disability’s behavior, which may constitute a denial of FAPE.

OSEP’s guidance explains that recent data concerning short-term disciplinary removals, including out of school suspensions, indicates that children with disabilities may have IEPs that do not properly incorporate PBIS. Research also indicates that disciplinary removals have a number of detrimental effects. As a result, OSEP’s guidance signals the belief that positive behavioral supports must be provided to satisfy the IDEA’s mandate of FAPE. OSEP’s guidance also attempts to establish an environmental framework, separate from student removals due to safety concerns, where educators can eliminate or mitigate disciplinary removals because they are using effective techniques to respond to behaviors.

Most notably, OSEP’s guidance stated that the IEP team must consider when, whether and what parts of the IEP need to be addressed or revised when a child’s behavior impacts that child’s or others’ learning through student conduct violations, classroom disruptions and disciplinary removals. For educators, this translates into re-convening the IEP team to determine whether behavioral supports in the IEP should be changed. Failure to properly consider and/or revise behavioral supports in the IEP may lead to a denial of FAPE. Therefore, educators should take care to ensure that IEPs do not continue without review and consideration, or revision, of behavioral supports if the IEPs original supports are not addressing repeated behaviors.

Ultimately, OSEP’s guidance is a strong suggestion for schools to develop and implement a multi-tiered behavioral framework, which research shows improves school climate, school safety, and academic achievement for all children, including children with disabilities. Per OSEP, PBIS works most effectively when incorporated within multi-tiered layers such as: instruction and clear behavioral expectations for all children, targeted small group interventions, and intense individualized supports for those needing it the most.

OSEP’s guidance may be viewed as an attempt to move schools away from short-term removals (i.e. suspensions, and exclusionary disciplinary measures) since the research demonstrates that such actions do not deter, reduce, or eliminate misbehavior or its reoccurrence. Rather, it leads to lower academic performance, falling behind in school, and then disengaging and dropping out. OSEP also corrects the belief that removals up to 10 days are “free days.” Such a blanket interpretation lacks the consideration and evaluation as to whether the IEP and its supports are properly addressing the student’s behavioral needs. It also misunderstands the obligation to reconvene an IEP team if there is a pattern or series of shorter term (less than 10 days) suspensions for the same or similar behavior. Training staff in the proper use of alternative disciplinary measures is another crucial act to ensure the lack of a disciplinary removal and, thus, a failure to implement the behavioral needs in the child’s IEP.

In conclusion, while the guidance may not be legally binding, districts may get burned by ignoring OSEP’s strong suggestions, especially given OSEP’s encouragement to parents to request IEP meetings or file for mediation or a due process complaint. Be safe and don’t play with fire.

If you have any questions about this article, please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig at 920.431.2242 / with any questions.

Wisconsin Court of Appeals Upholds School District’s Post-Act 10 Reduction of Retirement Benefits

A recent unpublished opinion of the Wisconsin Court of Appeals affirms the principle that Wisconsin school districts are authorized to unilaterally determine the amount of retiree benefits offered in the post-Act 10 era.

The Court’s August 2016 ruling in Townsend v. Neenah Joint School District brought closure to a series of related cases arising from a class-action lawsuit brought by current and former teachers of the Neenah Joint School District (the District). The teachers unsuccessfully sought reinstatement of certain supplemental retirement benefits that were reduced following the expiration of a collective bargaining agreement (CBA) in place between teachers and the Neenah Joint School District.


The District had previously provided a supplemental retirement plan to its teachers under a series of two-year CBAs between the District and the Neenah Education Association (NEA). The final CBA was effective from July 1, 2009 through June 30, 2011, and described both a monetary stipend and a post-retirement health insurance benefit available for teachers who retired after having met certain age and service requirements.

The CBA also included a so-called evergreen clause, which provided that “should the parties fail to reach agreement on a new” CBA, “this Agreement shall continue in full force and effect until such time that the terms and conditions of the new Agreement are fully resolved.” Both the NEA and the District recognized that the evergreen clause prevented the District from unilaterally terminating or changing the supplemental retirement plan after a CBA expired.

In 2011, the Wisconsin Legislature passed 2011 Wisconsin Act 10, specifically prohibiting public sector employees from bargaining collectively on issues other than base wages.

Following the expiration of the CBA, the District drafted an employee handbook to describe the terms and conditions of employment (including benefits) that had previously been addressed in the CBA. Any teacher retiring by June 2012 was permitted to receive the benefits provided for in the final CBA.

Effective October 2012, the District changed its retiree benefit program in a way that prospectively reduced that amount of supplemental benefits available as compared to the benefits under the final CBA.

Legal Arguments

In a final appeal of the Winnebago County Circuit Court’s dismissal of the case, the teachers claimed that retirement benefits must be reinstated under legal theories including promissory estoppel and unjust enrichment.

The Court of Appeals observed, however, that promissory estoppel and unjust enrichment are equitable remedies intended to restore an individual who has relied on a promise (or provided significant services) in the absence of written agreement. Here, in contrast, the terms of agreement had been carefully negotiated and committed to writing. Legal theories requiring the absence of a written agreement cannot prevail where there is a written agreement. What the plaintiffs were actually requesting, the Court asserted, was for the District to continue to observe a negotiable and expired contract term that can no longer exist in light of the bargaining prohibitions under Act 10.

While the Court affirmed that the CBA had been a valid and bargained-for employment contract, such contract did not include any terms that caused the retirement benefits to vest after the CBA’s expiration. Because, as the parties agreed, Act 10 effectively voided the protective evergreen clause, the District was fully empowered to exercise its discretion in setting the amount of retirement benefits after the CBA expired following the passage of Act 10.

Having repeatedly bargained for two-year contracts which set forth all material terms of the bargain, the plaintiffs could not now replace their contract claims with legal claims applicable only absent a written contract.

“Act 10 changed the game for everyone,” the Court noted. The District “is not liable for acting within the confines of the law.”

If you have any questions about this article, please contact your Davis & Kuelthau attorney or the employee benefits attorney, Hugo P. Rojas at 414.225.1413 /

Are Your District Websites Accessible to Individuals with Disabilities?

An increasing area of attention for the U.S. Department of Education Office of Civil Rights (OCR) is whether school districts are providing accessible websites for individuals with disabilities. OCR has heightened its enforcement actions against larger educational institutions over the past few years for violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act for failing to provide accessible websites consistent with both laws’ protections. OCR’s enforcement actions are now beginning to trickle down to the local level and will begin to affect all districts large and small in the months ahead. There have been over 600 complaints filed nationwide with an existing backlog in our Region’s local OCR office in Chicago due to OCR’s investigation of every complaint. It is important to learn about and address this issue now, without the pressure and compressed timeline of an OCR investigation.

The critical issue for Districts surrounding website accessibility is whether individuals with disabilities can perceive, understand, navigate, interact, and contribute to the internet or worldwide web in a way that is equal to and as effective as that of individuals without disabilities. Individuals impacted by an inaccessible website may include those that are visually impaired (unable to view images or color contrast difficulties), have limited manual dexterity (need speech recognition or keyboard alternatives), or hearing-impaired (need for closed-captioning). Title II of the ADA applies to state and local governments, which includes school districts, and Section 504 of the Rehabilitation Act applies to recipients of federal funds, which also includes school districts. Both Title II and Section 504 prohibit discrimination against individuals with disabilities. Common problems and violations for websites are: missing text descriptions (a/k/a “alt-tags”) that describe images to blind/low-vision users, having access to important content only by mouse, displaying color combinations making text difficult to see, and/or playing videos not accurately captioned for people who are deaf.

As a result of the numerous complaints, OCR is entering into Resolution Agreements with Districts across the country, including at least a handful of Districts in Wisconsin, requiring a series of actions to bring their websites into compliance with Title II and Section 504. Common themes and conditions throughout published Resolution Agreements include the following:

  1. People with disabilities must have opportunities equal to others in programs, services, and activities;
  2. Website audits must be performed by persons with the knowledge and experience to audit content and functionality;
  3. The adoption of policies and procedures to ensure all new and modified content is accessible;
  4. Developing a corrective action plan to remove existing barriers;
  5. Posting a notice of how to request access to inaccessible information;
  6. Providing website accessibility training to all appropriate personnel; and
  7. Websites must be accessible not only to students but also members of the public with disabilities.

It is crucial for Districts to get ahead of this issue now instead of having to implement these requirements on an accelerated time schedule that may conflict with a District’s budgetary and time capabilities. More importantly, it communicates a District’s commitment to website accessibility to individuals with disabilities, which does not apply only to students. It applies to all staff within a District along with parents and other individuals with disabilities that may need to access a District’s website. Districts should take actions consistent with the common themes described above including: adopting a website accessibility policy, performing periodic audits by a qualified auditor, and training all staff on how to properly display accessible content. Districts should also develop their own realistic implementation plan, consider establishing a web accessibility committee with multi-disciplinary team members, and evaluate accessibility across multiple applications such as mobile, tablet, and desktop websites. Finally, Districts should document all of their efforts in addressing this issue, which will be vital if OCR comes knocking. In conclusion, Districts should make this issue a priority due to OCR’s recent enforcement activity after years of trying to obtain voluntary compliance. OCR appears to be done waiting.

If you have any questions, please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig, at 920.431.2242 /

Save the Date! Davis & Kuelthau’s 29th Annual School Law Seminar

Davis & Kuelthau’s 29th Annual School Law Seminar will take place on Wednesday, January 18, 2017. Stay tuned for more details.

Davis & Kuelthau’s School Law Seminar is held in conjunction with the WASB/WASDA/WASBO Education Convention.

Mary S. Gerbig will be presenting, Open Enrollment and the Special Needs Scholarship Program at the 2017 Wisconsin State Education Convention at 8:00am on January 18th as part of the annual School Law Track.