Learn more about key issues facing public schools through a legal lens with NSBA's legal guides.
NSBA brings the school board voice to courts addressing legal issues affecting public schools through its nationally-acclaimed amicus brief program. Discover the school board perspective in NSBA filings below.
The plaintiff in this case is a student whose Oregon school district provided him with special education and related services through an Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA). The student and his family filed a complaint under IDEA’s administrative procedures taking issue with certain services provided by the district. At the IDEA due process hearing, the hearing officer determined that the school district had developed a valid IEP that provided the student with a Free Appropriate Public Education (FAPE). The family appealed that decision to federal district court, which upheld the hearing officer’s ruling on FAPE. The family also sought monetary damages from the district, alleging that the district had discriminated against him based on disability by failing to provide certain services, in violation of Section 504 of the Rehabilitation Act. The student argued that the district should be found to have violated Section 504, even if the district provided FAPE under the IDEA. The NSBA amicus brief, joined by the Oregon School Boards Association, provides the Court with the history of the parallel development of Section 504 and the IDEA, along with courts’ interpretation of the regulations implementing those laws, particularly with respect to a regulation that provides that the implementation of an IEP under the IDEA meets Section 504’s FAPE requirements. The brief emphasizes that the collaborative framework of the IDEA process favors cooperation between local educational agencies (“LEA”) and families to develop a program appropriate for a child, and disposition of disputes through an administrative hearing process overseen by a hearing officer with specialized expertise, rather than costly, contentious, and emotionally painful litigation.
Muldrow v. City of St. Louis et al. (U.S. Supreme Court merits)
October 18, 2023
In Muldrow v. City of St. Louis, et al, the Supreme Court considers whether an employment transfer is automatically subject to federal civil rights laws, even if the employee has not shown that he or she suffered some kind of objective adversity. Here, the plaintiff is a police sergeant who maintains that the City of St. Louis Police Department discriminated against her based on sex twice: first, when it transferred her to another division, and again when it denied her request to transfer to a different position. The district court and appellate court decided that the sergeant had not shown that she suffered any objective adversity such as a pay cut, so she did not have a civil rights claim. She asks the Supreme Court to find that an employment transfer is automatically subject to a discrimination claim even if a court does not find that there is some kind of objective harm alleged. The NSBA brief urges the Court to clarify, rather than discard, the requirement that an employment discrimination plaintiff show objective harm to prove his or her case. The brief explains that schools must be able to assign staff with appropriate experience and expertise where they are needed to serve the learning and safety needs of students. If every staff transfer could be litigated under federal civil rights law, schools would be forced to spend undue time and resources on litigation rather than serving the educational needs of students.
March 17, 2023
In this case, the plaintiffs sued three school districts in Massachusetts as well as state officials including the Governor claiming pandemic-related school closures violated students’ rights under the Individuals with Disabilities Education Act and other statutes. The U.S. Court of Appeals for the First Circuit will consider whether the lower court was correct in when it ruled in favor of the school districts and state officials, finding that system-wide closures such as those that were ordered during the pandemic do not invoke IDEA’s “stay put” requirement, and do not excuse IDEA’s mandate that families pursue claims related to “free appropriate public education” or “FAPE” through the administrative process. NSBA’s amicus brief, joined by the Massachusetts, Maine, and Rhode Island associations, explains that the lower court’s decision reflects longstanding legal standards recognizing state and local authority to manage schools in emergencies and IDEA’s collaborative framework.
Perez v. Sturgis Public Schools, et al. (U.S. Supreme Court merits)
December 16, 2022
In Perez v. Sturgis Public Schools, et al., the Supreme Court is asked to decide whether, and when, courts may excuse the requirement to “exhaust” administrative processes under the Individuals with Disabilities Education Act (IDEA). NSBA’s amicus brief, joined by the Michigan Association of School Boards, urges the Court to honor IDEA’s longstanding exhaustion requirement because it reflects the statute’s collaborative framework. The brief explains that the plain text of IDEA requires collaboration between schools and families through the administrative process, a process designed to preserve relationships and determine the child’s program relatively quickly. NSBA urged the court not to allow circumvention of IDEA’s procedures to provide direct access to federal courts when the IDEA provides for a relatively quick and comprehensive approach for determining appropriate services for the child.
Students for Fair Admissions v. President and Fellows of Harvard College; Students for Fair Admissions v. University of North Carolina, et al. (U.S. Supreme Court merits)
August 1, 2022
In two cases, the United States Supreme Court considers race-conscious admissions programs at the oldest private and public institutions of higher education (IHEs) in the nation.* The petitioners in these cases challenge the consideration of race in admissions at Harvard and the University of North Carolina. They ask the Court to overrule Grutter v. Bollinger, 539 U.S. 306 (2003) and to hold that institutions of higher education (IHEs) may not use race as a factor in admissions at all; or to find that the IHEs sued in these cases did not comply with Grutter and the body of caselaw based on it. In its amicus brief, NSBA urges the Court not to intrude on school districts’ long-established authority to employ critical tools to promote diversity through locally-determined policy. As the brief explains, K-12 schools have a recognized compelling interest in preventing racial isolation and ensuring a diverse student population, both of which are educational goals. Diverse student bodies provide students lifelong benefits, enhance civic participation, and promote democracy. These efforts are increasingly challenging, as communities are often separated along racial and socioeconomic lines. In addition, local school district use tools that complement, but are distinct from, those used by colleges to achieve the educational goal of diversity. Unlike universities, which sometimes consider race individually, school districts use a variety of race-conscious tools to enhance diversity without classifying individual students by race. In this brief, NSBA continues its legal advocacy work over many years on the benefits of diversity in public education. NSBA filed amicus briefs in Parents Involved in Community Schools v. Seattle School District (2007) and Fisher v. University of Texas Austin (2013 and 2016) urging the Court not to severely limit local school districts’ mission-driven, locally-determined efforts to foster diversity in their programs.
*Two other universities, the University of Georgia and the College of William and Mary, also claim the title of oldest public university.
A.B. v. Brownsburg Community School Corporation (U.S. Court of Appeals for the Seventh Circuit)
May 18, 2022
In this case, the U.S. Court of Appeals for the Seventh Circuit will consider whether a special education dispute resulted in a ruling entitling the students’ parents to recoup the full amount of their attorneys’ fees from the school district. The Individuals with Disabilities Education Act allows a court, in its discretion, to award reasonable attorneys’ fees as part of the costs, “to a prevailing party who is the parent of a child with a disability.” The question here is whether the parents can be considered “prevailing” when the school district agreed to all of the educational relief requested in their complaints and no hearing was ever held. NSBA filed an amicus brief in the case urging the court to uphold the decision of the lower court in favor of the school district’s position. The brief explains that an attorneys’ fees award in this case would be contrary to IDEA’s plain language and collaborative framework, and would encourage litigation rather than compromise.
C1G v. Siegfried (U.S. Court of Appeals for the Tenth Circuit)
November 18, 2021
The U.S. Court of Appeals for the Tenth Circuit (Denver) will consider whether a school district violated a high school student’s constitutional rights when it expelled him based on his off-campus online post suggesting violence toward a religious group. At the center of the case is how the Supreme Court’s recent ruling in Mahanoy Area School District v. B.L. should be applied. There, the High Court decided that under the First Amendment’s Free Speech Clause, schools have diminished interest in regulating students’ off-campus speech, but do retain significant interests in addressing off-campus student speech in certain circumstances. The NSBA brief, joined by the state school boards associations in the Tenth Circuit, argued that even after Mahanoy, the Tinker standard remains the basic framework for analysis of public school authority with respect to student off-campus speech. Under that framework, schools retain authority to address “imperiling” speech in circumstances such as those of this case.
Carson v. Makin (U.S. Supreme Court Merits)
October 29, 2021
In Carson v. Makin, the High Court is asked to decide whether Maine may exclude sectarian schools from those who may participate in its tuition program, available to families when their school district is unable to offer a secondary school. The NSBA brief urges the Supreme Court to retain precedent recognizing a state’s authority to control the contours of free, open, and religiously neutral public education within its borders. The brief argues that a decision requiring the compulsory funding of sectarian education would (1) remove a state’s ability to craft solutions to geographic or other important barriers to the delivery of public instruction; and (2) adversely impact public education by draining public resources from public school systems.
Arizona School Boards Association, et al. v. State of Arizona (Arizona Supreme Court)
October 14, 2021
The NSBA amicus brief urges the Arizona Supreme Court to affirm the trial court’s ruling in favor of ASBA. In this suit, ASBA challenges budget reconciliation bills passed by the state legislature prohibiting local school districts from imposing mask mandates. The trial court ruled in favor of ASBA, finding the bills violated state constitutional requirements. NSBA’s brief explains to the state supreme court that the bills improperly remove the authority of the state’s school districts to fulfill their most basic and expected duty: to keep students, staff, and guests safe in school buildings.
CVS Pharmacy, Inc. v. Doe (U.S. Supreme Court merits)
September 10, 2021
In a case arising under the Affordable Care Act, NSBA joined other national organizations representing state and local governments in a brief urging the Court to overturn the Ninth Circuit’s decision. That decision allowed plaintiffs to allege disparate impact claims in disability discrimination cases brought under Section 504 of the Rehabilitation Act. The brief explains that the Ninth Circuit’s decision threatens to deprive state and local governments of critical federal funds without any proof of purposeful discrimination. Because federal funding is conditioned on compliance with § 504, expanding the Act to include disparate-impact liability would arm dozens of federal agencies with the ability to cripple the budgets of states and localities, and the mere threat of such a loss could encourage lawsuits and unfairly large settlements for even the most frivolous claims.
Arizona School Boards Association, et al. v. State of Arizona (Arizona Superior Court)
September 9, 2021
The NSBA amicus brief supports ASBA’s challenge to budget reconciliation bills passed by the state legislature prohibiting local school districts from imposing mask mandates. NSBA explained to the state trial court that the bills improperly remove the authority of the state’s school districts to fulfill their most basic and expected duty: to keep students, staff, and guests safe in school buildings.
Houston Community College System v. Wilson (U.S. Supreme Court merits)
July 19, 2021
The Supreme Court has been asked to decide whether an individual community college board member has a valid claim against the board for violating his First Amendment right to free speech after it publicly censured him. NSBA joined the Texas Association of School Boards Legal Assistance Fund in an amicus brief supporting the public community college board. The brief explains that the appellate court’s decision allowing such a First Amendment speech claim to proceed against a public board runs contrary to the Court’s precedent and the constitutional authority of the legislative branch to establish rules. There should be no recognized claim against a public board for a censure that does not prevent the censured member from carrying out his duties. A decision to the contrary would minimize the right of the public body to speak; a board member’s individual rights do not trump an elected board’s right to exercise its own voice.
Doe v. Fairfax County School Board (U.S. Court of Appeals for the Fourth Circuit, supporting petition for en banc review)
July 7, 2021
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a 2-1 ruling against the school district that stated a new standard for Title IX liability in peer sexual harassment cases. In a second amicus brief filed in this case, this time supporting the school district’s petition for a review of the case by the entire (en banc) court, NSBA urged the court to rehear the case. The brief explained that the Supreme Court established a demanding liability standard for claims of student-on-student sexual harassment against school districts. The panel’s decision significantly relaxes this standard and creates a liability regime that will expose school districts throughout the Fourth Circuit to unfettered litigation regardless of the manner in which an educator or administrator attempts to implement the requirements of Title IX. Moreover, the panel’s decision creates splits with six other circuits. Absent en banc correction of the panel’s decision, school officials will lose the ability to exercise their discretion and judgment when investigating and responding to Title IX complaints concerning student-to-student harassment.
K.M. et al. v. DeBlasio et al. (U.S. Court of Appeals for the Second Circuit)
June 29, 2021
In this case, representatives of students with disabilities sought to bring a class action lawsuit against every school district and state education agency in the nation, claiming that pandemic-related school closures meant schools had violated the students’ rights under federal statutes including the Individuals with Disabilities Education Act. The appellate court is asked to review the district court’s decision to dismiss the complaint against the New York City defendants on substantive grounds, and its decision to dismiss the complaint against the other defendants on numerous procedural grounds. NSBA joined an amicus brief by the New York State School Boards Association arguing that (1) the closure of public schools in response to the COVID-19 pandemic and the shift from in-person to remote learning did not cause a change in placement in violation of the IDEA’s stay-put provision, but instead was a good faith effort to contain the spread of a global threat; and (2) the claims should have proceeded through the administrative process before being filed in court.
Doe v. Hopkinton Public Schools (U.S. Court of Appeals for the First Circuit)
May 27, 2021
The federal appellate court will consider whether a Massachusetts school district violated the First Amendment free speech rights of two students who were suspended for their participation in a group bullying effort against one member of a school hockey team. The group bullying at issue took place via the social media platform, Snapchat. The federal district court upheld the discipline, and the students appealed. NSBA filed a brief joined by all the state school boards associations in the First Circuit (Massachusetts, Maine, New Hampshire, Rhode Island) explaining to the court that public school officials are authorized to address cyberbullying under the Supreme Court’s 1969 decision, Tinker v. Des Moines Independent Community School District, which held that student speech that invades the rights of others is not protected. The brief also argues that school officials must retain their well-recognized discretion to consider a student’s unprotected speech in context to apply appropriate consequences.
Mahanoy Area School District v. B.L. (U.S. Supreme Courts Merits)
March 1, 2021
In Mahanoy Area School District v. B.L., the Supreme Court takes on student free speech for only the fourth time since its it decided Tinker v. Des Moines Independent Community School District in 1969. Here, a Pennsylvania school district was sued by a student removed from the cheer team after posting a profane rant against the school’s cheer and softball programs on Snapchat. The High Court will decide whether the appellate court was correct to rule that the First Amendment prohibits public school officials from responding to student online speech originating off-campus, and off school platforms. NSBA explains in its brief that the physical location of a student’s speech is irrelevant in today’s social media environment, and that schools will be hampered in their duty to address harmful online speech including bullying if such a limitation remains.
Spring Branch Independent School District v. O.W. (Supreme Court – Petition Stage)
February 4, 2021
A Texas school district asks the Supreme Court to hear a case addressing whether a public school district may comply with its Child Find obligation under the Individuals with Disabilities Education Act (IDEA) by providing the child with supports and accommodations under Section 504. The U.S. Court of Appeals for the Fifth Circuit decided that a school district had not referred a child for evaluation under IDEA “within a reasonable time,” despite the proactive steps taken by the district to address the child’s needs in school before starting the IDEA evaluation process. The NSBA brief explains that the Fifth Circuit’s decision misconstrues the Child Find obligation and creates a split among federal appellate courts on the important question of whether a public school district may comply with its Child Find obligation under the IDEA by using Section 504 accommodations. The brief urges the High Court to hear the case to resolve the split and to allow educators to exercise professional judgement and to collaborate with parents to address a child’s needs before referral for a special education evaluation.
McVeigh v. Vermont School Boards Association (Supreme Court of Vermont)
January 27, 2021
The Vermont Supreme Court is asked to determine whether the Vermont School Boards Association is subject to the state’s public records law. The NSBA amicus brief supports VSBA’s position that, as a private non-profit entity, it is not required to release email communications under that law. The NSBA brief provides a national perspective on state public records laws, noting that state courts have not found such laws to require private non-profit membership associations to disclose records without a clear legislative directive to do so. Public records laws are designed to provide transparency to government functions, the brief explains. State school boards associations, which support local school boards, do not themselves engage in the crucial government function of providing public education. It urges the court to decline the invitation to be the first state appellate court in the United States to hold that a private non-profit statewide school boards association is subject to a state’s public records law.
Independent School District No. 283 v. E.M.D.H. (Supreme Court – Petition Stage)
January 13, 2021
In Independent School District No. 283 v. E.M.D.H., a Minnesota school district asks the Supreme Court to hear a case in which the U.S. Court of Appeals determined that a “continuing violation” theory applied, rather than the very clear statute of limitations provided by Congress in the Individuals with Disabilities Education Act. NSBA, joined by all of the state associations in the Eighth Judicial Circuit and the two national principals organizations, filed an amicus brief supporting the school district and urging the High Court to hear the case. NSBA’s brief explains that the Eighth Circuit’s decision upended a clear and widely-understood statutory standard about the time period when IDEA claims can be brought against a school district. In doing so, the court of appeals injected grave uncertainty into a previously stable area of the law, affecting thousands of schools and millions of students served under the IDEA.
Uzuegbunam, et al. v. Preczewski, et al. (U.S. Supreme Court Merits)
November 24, 2020
The Supreme Court is asked to consider whether a government’s post-lawsuit change of an allegedly unconstitutional policy makes the plaintiff’s claims for nominal damages moot, even if the governmental entity allegedly violated the plaintiff’s rights. The High Court agreed to hear the case, in which university students challenged a campus speech policy, which was changed in the students’ favor after their lawsuit was filed. The U.S. Court of Appeals for the Eleventh Circuit broke from other circuits by deciding that a case is indeed moot in this scenario. NSBA joined other national organizations representing government entities and officials to explain that the Supreme Court should uphold the Eleventh Circuit’s ruling. Cases like this must be found moot, the brief explains, to retain the “case or controversy” requirement of the federal judicial system. The Eleventh Circuit has ruled consistently with theories of federalism and in keeping with public officials’ duty to spend public dollars wisely, rather than in endless litigation that will not result in changed policy or compensatory damages.
The Supreme Court is asked to determine whether a Presidential Memorandum directing the Department of Commerce to exclude persons who are not in lawful immigration status from the count used to apportion representatives violates the Constitution and the applicable federal statutes, and whether federal courts may hear this challenge under Article III of the Constitution. The NSBA brief argues the Memorandum violates both the Constitution and federal statutes, and creates great uncertainty for public education entities that depend on census data for federal funding and sound policy choices.
B.L. v. Mahanoy Area School District (Supreme Court – Petition Stage)
October 1, 2020
The Mahanoy Area School District asks the Supreme Court to hear a case in which a high school student was removed from the cheerleading squad after posting offensive language directed at the team online. NSBA was joined by several national educational organizations in support of the school district’s petition, urging the High Court to accept the case to resolve disagreement between appellate courts on the extent to which school officials may regulate online off-campus student speech that is disruptive to the learning environment. NSBA explained that the appellate court’s ruling against the district: (1) creates uncertainty in the law about whether and to what extent public administrators may discipline students for off-campus student speech; (2) overlooks the distinction between core academic programs and extracurricular activities; draws a line between on- and off-campus speech is arbitrary and anachronistic. The brief concludes that the High Court’s guidance is especially needed as schools shift to remote learning in the wake of the COVID-19 pandemic.
Kennedy v. Bremerton School District (U.S. Court of Appeals for the Ninth Circuit)
September 28, 2020
The Ninth Circuit will consider the extent to which an assistant football coach’s act of praying at the 50-yard line immediately after games is protected by the First Amendment. NSBA filed an amicus brief joined by several state school boards associations explaining that school district must be able to regulate employee speech that occurs during their official duties, as courts have repeatedly recognized and as sound public policy requires. Because teachers and coaches hold positions of trust and authority, and interact with impressionable young minds, they are regarded as speaking for the school district while at school or a school function, in the general presence of students.
Adams v. McMaster (South Carolina Supreme Court)
September 3, 2020
The South Carolina Supreme Court is asked to decide whether the governor’s use of CARES Act funds for a private school voucher program violates the state constitution’s prohibition on public funds being used for the direct benefit of private schools. In the brief, NSBA urges the court to hold the program unlawful because it not only violates the state constitutional restriction, but also conflicts with Congress’s purpose to support public schools’ efforts to serve students, particularly those who are economically disadvantaged, through the CARES Act.
The National Association for the Advancement of Colored People v. DeVos (U.S. District Court for the District of Columbia)
August 28, 2020
The issue before the U.S. District Court for the District of Columbia is whether the Department of Education exceeded its authority when it issued an Interim Final Rule regarding apportionment of equitable services to private schools under the CARES Act. The CARES Act provision at issue “unequivocally and plainly instruct[s]” the U.S. Secretary of Education to allocate the CARES Act funding in the same manner as Title I of the Elementary and Secondary Education Act (ESEA), which has been for the last half century our nation’s flagship education program for funding our neediest students. NSBA, along with several national education advocacy groups, filed a brief in support of the plaintiffs, led by the NAACP, arguing: (1) Secretary DeVos’s decision to divert critical funding from public schools is based on a misreading of the CARES Act that ignores key historical and statutory context; and (2) the Secretary’s unlawful diversion of CARES funds will harm our most vulnerable students.
William V. v. Copperas Cove Independent School District (U.S. Court of Appeals for the Fifth Circuit)
May 1, 2020
The U.S. Court of Appeals for the Fifth Circuit is asked to decide whether a Texas district court determined, in error, that a student’s diagnosis of “dyslexia” equates to a “Specific Learning Disability” under the IDEA, requiring a school district to find that student eligible for IDEA services. The NSBA/Texas Association of School Boards’ Legal Assistance Fund amicus brief explains that: a dyslexia “label” is not interchangeable with “Specific Learning Disability” under IDEA, in fact several states require specific “dyslexia” interventions outside of or in addition to IDEA requirements; decisions about IDEA eligibility should be made by IEP teams, which include the student’s parents; and the court should not adopt a standard broader than that required by the Supreme Court’s ruling in Endrew F.
D.L. v. St. Louis City School District (U.S. Court of Appeals for the Eighth Circuit, supporting motion for rehearing)
March 31, 2020
The Eighth Circuit is asked to reconsider a panel ruling on the appropriateness of an Individualized Educational Program for a student under the Individuals with Disabilities Education Act (IDEA). The NSBA/Missouri School Boards Association amicus brief explains that decisions about student eligibility and services under the IDEA are educational and prospective in nature, and that the Supreme Court has directed federal courts to defer to educators’ judgements.
Doe v. Fairfax County School Board (U.S. Court of Appeals for the Fourth Circuit)
March 16, 2020
The Fourth Circuit is asked to consider whether the trial court properly denied the plaintiff’s motion for a new trial in a student-to-student sexual harassment case brought under Title IX. NSBA argues that the Fourth Circuit should not expand the Supreme Court’s intentionally narrow standard for school district liability in such cases, which requires deliberate indifference to known harassment.
Council of Organizations & Others for Ed v. State of Michigan (Michigan Supreme Court)
Dec. 19, 2019
The Michigan Supreme Court has been asked to decide whether a state statute providing certain aid to private schools violates Article 8, § 2 of the Michigan Constitution, or must be implemented to avoid a violation of the Free Exercise Clause. NSBA’s brief argues (1) Article 8, § 2 of the Michigan Constitution, which prohibits any public aid to private schools of any kind, does not burden the free exercise of religion because It applies uniformly to all non-public schools; (2) states have the right to define the parameters of their own constitutions within federal constitutional guidelines; and (3) the neutrality of Michigan’s constitution renders its impact on parochial school funding irrelevant.
Espinoza v. Montana Dept of Revenue, No. 18-1195 (U.S. Merits)
Nov. 15, 2019
Privatization & School Choice: 1) States' policy decisions not to fund religious instruction as part of their historic commitment to public education are constitutional; and 2) Programs like Montana's invalidated tax credit scheme harm public education.
Carson v. Makin, No. 19-1746 (United States Court of Appeals for the First Circuit)
Nov. 6, 2019
Privatization and choice: (1) Eulitt held that Maine’s program offering a secular public education does not infringe the free exercise clause based on the “play in the joints” between the religion clauses recognized in Locke v. Davey. Trinity Lutheran has left that framework in place; (2) Maine’s method of supporting a public secular education by restricting funding for religious instruction is based on valid entanglement concerns and is well within the “play in the joints” left undisturbed by Trinity Lutheran; and (3) If the court requires Maine to fund the pervasively religious education sought by plaintiffs under Maine’s unique program for supporting public education, it will undermine support of public education throughout this circuit.
Department of Homeland Security v. Regents of the University of California (United States Court of Appeals for the Ninth Circuit Court and Writs of Certiorari)
Oct. 4, 2019
This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for Childhood Arrivals (DACA). The questions presented are: (1) Whether DHS’s decision to wind down the DACA policy is judicially reviewable, and (2) Whether DHS’s decision to wind down the DACA policy is lawful.
D.S. v. Trumbull Board of Education, No. 19-644 (United States Court of Appeals for the Second Circuit)
Sept. 30, 2019
Did the District Court properly determine that a parent’s right to a publicly-funded independent educational evaluation (IEE) hinges on a connection between the IEE requested by the parent and an existing evaluation obtained by the school district with which the parent disagrees?
Comcast Corporation v. National Association of African American-Owned Media, and Entertainment Studios Networks (Supreme Court - Merits Brief)
Aug. 15, 2019
Whether (1) the but-for causation is the default rule for for Section 1981 (2) a mixed-motive standard for Section 1981 would disrupt employment discrimination law (3) a mixed-motive standard would impact legitimate employment actions and contract decisions, disrupt workplaces, and impose unwarranted costs and (4) this case underscores the problems with a mixed-motive standard for Section 1981 claims.
M.S. and S.S. v. Hillsborough Twp. Public School District (United States Court of Appeals for the Third Circuit)
July 31, 2019
Whether parents of a special education student are entitled to an IEE at public expense under IDEA only after the school district has conducted an evaluation with which the parents disagree.
B.L. v. Mahanoy Area School District (United States Court of Appeals for the Third Circuit)
July 3, 2019
Whether school officials’ decision to ban a student who engaged in off-campus, online lewd, obscene, disrespectful speech targeting school community from participating in extracurricular activity violated the student’s First Amendment free speech rights.
Bostock v. Clayton County, Georgia; Altitude Express v. Zarda (U.S. Merits Brief)
July 3, 2019
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of * * * sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2 and whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping.
N. M. v. Harrison School District (United States Court of Appeals for the Tenth Circuit)
May 16, 2019
Whether the Tenth Circuit should apply Endrew F. consistently with other circuits and the Supreme Court's clear intent to assess FAPE based on the child's individual circumstances.
U.S. Department of Commerce v. State of New York, No. 18-966 (U.S. Supreme Court – Merits Brief)
March 28, 2019
Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the United States Constitution.
Fort Bend County, Texas v. Davis (U.S. Supreme Court)
March 4, 2019
Whether Title VII’s administrative exhaustion is a jurisdictional prerequisite to suite, as three Circuits have held, or a waivable claim-processing rule, as eight Circuits have held.
C.D. v. Natick Public School District (United States Court of Appeals for the First Circuit)
February 27, 2019
Whether (1) Endrew F. expanded IDEA’s Least Restrictive Environment preference or changed the process for IEP teams to determine placement and (2) the IEP transition planning requirement is a flexible and individualized process assessed by courts as part of a multi-faceted IEP, which is evaluated in its entirety.
Town of Millburn v. Palardy, No. 18-830 (U.S. Supreme Court – Petition Brief)
February 4, 2019
Whether the Third Circuit’s two-step framework for evaluating First Amendment retaliation claims by public employees apply to a claim alleging retaliation based on an employee’s association with a public sector union, and if so, how.
Kisor v. Wilkie (U.S. Supreme Court – Merits Brief)
January 31, 2019
Whether Auer v. Robbins, 519 U.S. 452 (1997) should be overruled.
Vidal v. Nielsen (United States Court of Appeals for the Second Circuit)
April 11, 2018
Whether the district court’s preliminary injunction barring the United States government from terminating the DACA program should be upheld.
Regents of University of California v. U.S. Department of Homeland Security (United States Court of Appeals for the Tenth Circuit)
March 20, 2018
Whether a preliminary injunction barring the federal government from eliminating the DACA program is in the public interest because DACA promotes equity and diversity in public schools.
South Dakota v. Wayfair Inc. (U.S. Supreme Court – Merits Brief)
March 2, 2018
Whether the U.S. Supreme Court should abrogate the Quill Corp. v. North Dakota, 504 U.S. 298 (1992), sales-tax-only, physical-presence requirement.
Vidal v. Nielsen (E.D. N.Y.)
December 22, 2017
Equity & Discrimination: Amicus brief in support of motion for a preliminary injunction to bar the United States government from terminating the DACA program.
L.H. v. Hamilton County Department of Education (6th Cir.)
December 15, 2017
Special Education & Disabilities: What are the appropriate standards for determining whether an educational placement offers the least restrictive environment (“LRE”) for a student with a disability and whether a change in location constitutes a change of placement?
Davison v. Rose (4th Cir.)
December 7, 2017
Governance: Whether public office holder's private social media account constitutes a public forum for First Amendment purposes?
R.M. v. Gilbert Unified School District (9th Cir.)
November 28, 2017
Special Education & Disabilities: Whether IDEA's FAPE requirement that a student's IEP must provide educational benefit as defined by Endrew F. outweighs IDEA's preference for such benefit in the least restrictive environment.
South Dakota v. Wayfair Inc. (U.S. Sup. Ct. - Petition Brief)
November 2, 2017
Finance: Should the U.S. Supreme Court abrogate the Quill Corp. v. North Dakota, 504 U.S. 298 (1992), sales-tax-only, physical-presence requirement.
Window Rock Unified School District v. Reeves (U.S. Sup. Ct. - Petition Brief)
October 25, 2017
Legal System: Whether a tribal court has jurisdiction to adjudicate employment claims by Arizona school district employees against their Arizona school district employer that operates on the Navajo reservation pursuant to a state constitutional mandate to provide a general and uniform public education.
M.R. v. Ridley School District (3d. Cir. Pet. for rhrg en banc)
September 12, 2017
Special Education & Disabilities: Whether parents who succeed on claim for reimbursement for private school tuition under IDEA's stay put provision are a prevailing party entitled to attorneys' fees.
City of San Gabriel v. Flores (U.S. Sup. Ct. - Petition Brief)
February 21, 2017
Employment & Labor: Does the Fair Labor Standards Act allow employers, when calculating the overtime rate, to exclude payments to an employee that are entirely unrelated to his hours of employment.
Gloucester County School Board v. G.G. (U.S. Sup. Ct. - Merits Brief)
January 10, 2017
Equity & Discrimination: Whether informal agency guidance in the form of a letter interpreting Title IX as applying to gender identity is entitled Auer deference by courts.
Endrew F. v. Douglas County School District (U.S. Sup. Ct. – Merits Brief)
December 21, 2016
Special Education & Disabilities: What level of education benefit must be provided to meet the IDEA’s free appropriate public education requirement?
Fry v. Napoleon Community School District (U.S. Sup. Ct. - Merits Brief 2016)
October 7, 2016
Special Education & Disabilities: Whether 20 U.S.C. § 1415(l) requires Petitioners to exhaust the state administrative procedures set forth in the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
M.L. v. Bowers (4th Cir.)
April 6, 2016
Special Education & Disabilities: Whether a school district must provide a student with religious/cultural instruction in order to satisfy IDEA’s free appropriate public education requirement.
United Student Aid Funds, Inc. v. Bible (U.S. Sup. Ct. - Petition Brief 2016)
February 9, 2016
Federal agency notice and comment rulemaking: Whether Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), should be overruled.
City of Houston v. Zamora (U.S. Sup. Ct. Petition Brief 2016)
February 9, 2016
Whether the Fifth Court erred in applying the "cat's paw" theory of liability to Title VII.
Lopez v. Schwarz (1st Jud. Dist. Ct. Nev.)
November 24, 2015
Privatization & Choice: Nevada Education Savings Accounts Program — unconstitutional diverting of state funding intended for public education to private schools intended for to a free, public education —failure of state to meet its constitutional duty to provide free public education.
Fisher v. University of Texas at Austin (U.S. Sup. Ct. - Merits Brief)
November 2, 2015
Whether the Fifth Circuit's re-endorsement of the University of Texas at Austin's use of racial preferences in undergraduate admissions decisions can be sustained under this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).
Salazar v. South San Antonio Independent School District (5th Cir.)
September 28, 2015
Equity & Discrimination: Whether a school district may be held liable under Title IX of the Education Amendments of 1972 for the sexual assault of a student by a school principal when the abuser was the only school official with actual knowledge of the wrongdoing.
SB v. Board of Education of Harford County (4th Cir.)
September 23, 2015
Legal System: Section 504 claims seeking monetary damages for alleged peer harassment based on disability are subject to Title IX standard set forth in the U.S. Supreme Court in Davis.
Schott v. Wenk (U.S. - Petition Brief)
August 13, 2015
Liability: §1983 liability of mandatory reporters of suspected child abuse or neglect; even when (a) there is a reasonable basis to suspect abuse and (b) the report is not materially false — impermissibly chill child abuse reporting across the nation; (2) Can a First Amendment retaliation claim be brought against mandatory reporters of child abuse, even where a reasonable basis exists to suspect abuse.
Seth B. v. Orleans Parish School Board (5th Cir.)
June 8, 2015
Special Education & Disabilities: Whether IDEA requires publicly-funded independent educational evaluations (IEEs) to meet state and local school district evaluation criteria.
K.G. v. Irvine Unified School District (9th Cir.)
March 26, 2015
Special Education & Disabilities: IDEA — Is a prevailing party entitled to "automatic attorneys' fees and costs or is a court required to consider the degree of success achieved by the “prevailing party” in determining the size and appropriateness of the award of attorneys’ fees and costs.
Richardson v. State of North Carolina (N.C. Sup. Ct.)
February 2, 2015
Privatization & School Choice: Vouchers – Whether state’s private school voucher program violates state constitution.
EEOC v. Abercrombie & Fitch Stores (U.S. Sup. Ct. - Merits Brief)
January 28, 2015
Employment Discrimination: Title VII — Duty to provide religious accommodation in the absence of actual notice of need for accommodation.
Ohio v. Clark (U.S. Sup. Ct. - Merits Brief)
November 24, 2014
Legal System: Sixth Amendment Confrontation Clause — Teacher/school staff requirement to report suspected child abuse under state mandatory reporting law — 1.Does an individual's obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause? 2. Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause?
Perez v. Mortgage Bankers Association (U.S. Sup. Ct. - Merits Brief)
October 16, 2014
Legal System: APA — agency interpretative regulations — notice and comment procedure.
D.A. v. Meridian Joint School District No. 2 (9th Cir.)
October 14, 2014
IDEA: Eligibility for services — qualifying disability — adverse impact of disability on academic performance — "adversely affects educational performance" standard.
Ridley School District v. M.R.
July 28, 2014
IDEA: Extending private school tuition reimbursement — stay put placement — resolution special education disputes — collaborative process. Certiorari Brief.
Does v. Board of Education of Prince George's County (4th Cir.)
June 5, 2014
Legal System: Davis standard — deliberate indifference — agency enforcement guidance —bullying/harassment. Filed June 4, 2014.
Boone County Board of Education v. N.W. (6th Cir.)
January 28, 2014
Special Education: IDEA — Whether parents are entitled to tuition reimbursement under IDEA for unilateral placement of student in private school because that placement was the "proper" stay put placement.
Tustin Unified School District v. K.M. (U.S. Sup. Ct. - Petition Brief)
January 27, 2014
Special Education: IDEA — Section 504 - Title II of ADA — Does IDEA trump ADA's "effective communication" regulation when making decisions regarding the education of disabled students.
Easton Area School District v. B.H. (U.S. Sup. Ct. - Petition Brief)
January 6, 2014
Student Rights: First Amendment — Did school district violate students' free speech rights banning the wearing of cancer awareness bracelets, containing the caption "I [heart] boobies," in school.
Schuette v. Coalition to Defend Affirmative Action (U.S. Sup. Ct. - Merits Brief)
August 30, 2013
Equity & Discrimination: Fourteenth Amendment — Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in public-university admissions decisions.
Commonwealth of Kentucky v. N.C. (U.S. Sup. Ct - Petition Brief)
August 28, 2013
Student Rights: Fifth Amendment — Does a school administrator's questioning of a student in the presence of school resource officer trigger Miranda warnings.
Lance v. Lewisville Independent School District (5th Cir.)
July 26, 2013
Section 504 of Rehabilitation Act of 1973: Recovery of damages — intentional discrimination — deliberate indifference standard — exhaustion of administrative remedies requirement.
Hoke County Board of Education v. State of North Carolina (Leandro III) (N.C. Sup. Ct.)
July 24, 2013
School funding: State's constitutional duty to provide at-risk children with prekindergarten program.
Madigan v. Levin (U.S. Sup. Ct. - Merits Brief)
June 10, 2013
ADEA: Availability of section 1983 for age discrimination claim.
Jefferson County School District R-1 v. Elizabeth E. (U.S. Sup. Ct. - Petition Brief)
April 25, 2013
IDEA: Medical care — unilateral placement of student receiving special education services in mental health facility — reimbursement when placement is primarily for education purposes.
Louisiana Federation of Teachers v. State of Louisiana (La. Sup. Ct.)
March 18, 2013
School voucher program: Louisiana private school voucher program part of national effort to divert public dollars from public education — without imposing accountability to harm of taxpayers.
C.L. V. Scarsdale Union Free School Dist. (2d Cir.)
March 15, 2013
IDEA: Whether courts must consider IDEA's least restrictive environment requirement when determining if a parent's unilateral placement of their child in private school is appropriate for purposes of granting tuition reimbursement under IDEA.
Long v. Murray County School Distict (11th Cir.)
November 28, 2012
Section 504 of the Rehabilitation Act of 1973/Americans with Disabilities Act: Whether summary judgment was properly granted on the claim of disability discrimination under Section 504 and the ADA based on the district court‘s finding that the school district was not deliberately indifferent.
Niehaus v. Huppenthal (Ariz. App. Ct., Div. One)
October 31, 2012
Establishment Clause — Prohibition on public funding of religious institutions: Whether Arizona's tuition-tax credit program violates the state constitutional provisions mandating separation of church and state and prohibiting the use of public funds to aid religious institutions, such as schools.
Fisher v. University of Texas at Austin (U.S. Sup. Ct. - Merits Brief)
August 13, 2012
Fourteenth Amendment — Equal Protection Clause: Whether the U.S. Supreme Court's decisions interpreting the Equal Protection Clause of the 14th Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions decisions.
D.L. v. Baltimore City Board of School Commissioners (4th Cir.)
April 9, 2012
Section 504 of the Rehabilitation Act of 1973: Whether a disabled student enrolled in private school is entitled to services under Section 504 on the same basis as a disabled student enrolled in public school.
Doe v. Covington County School District (5th Cir.)
December 30, 2011
Fourteenth Amendment: Due Process — special relationship theory of liability for acts of third parties — state created danger exception based on school district's ID check policy for visitors.
Peninsula School District v. D.P. (U.S. Sup. Ct. - Petition Brief)
November 23, 2011
IDEA: Exhaustion of administrative remedies requirement — seeking to avoid requirement by artful pleading based on remedy sought.
Filarsky v. Delia (U.S. Sup. Ct. - Merits Brief)
November 22, 2011
Qualified immunity: Is a lawyer retained to work with government employees in conducting an internal affairs investigation precluded from asserting qualified immunity solely because of his status as a "private" lawyer rather than a government employee.
Hispanic Interest Coalition of Alabama v. Bentley (11th Cir.)
November 22, 2011
Fourteenth Amendment: School-related provisions in Alabama's immigration law violate Equal Protection Clause guarantees established in U.S. Supreme Court's decision in Plyler v. Doe.
Blue Mountain School District v. J.S./Hermitage School District v. Layshock (U.S. Sup. Ct. - Petition Brief)
November 2, 2011
First Amendment: Student speech — Does Tinker and/or Fraser apply to off campus, online student speech — school officials’ authority to regulate, restrict such speech without offending student's free speech rights.
R.K. v. Board of Education of Scott County, Kentucky (6th Cir)
October 14, 2011
ADA/Section 504: Right of student receiving disability-related services to attend neighborhood school — financial burden on school district.
Jefferson County School District R-1 v. Elizabeth E. (10th Cir.)
September 26, 2011
IDEA: Medical care — Unilateral placement of student receiving special education services in mental health facility — reimbursement when placement is primarily for education purposes.
Morgan v. Swanson (5th Cir.)
March 16, 2011
First Amendment: Establishment Clause and Free Speech Clause — Qualified immunity for school officials making decisions that require reconciling free speech and government endorsement of religion concerns.
Colorado Christian University v. Baker (10th Cir.)
December 5, 2007
First Amendment: Establishment Clause — state provisions prohibiting public funding of religious education.
Alexandria City Schools v. A.K. (U.S. Sup. Ct.)
November 27, 2007
IDEA: Individualized education program — definition of “location” of services — denial of free appropriate public education.
Kentucky Retirement Systems v. EEOC (U.S. Sup. Ct.) - Merits Brief
November 13, 2007
ADEA: Age as factor in retirement plans — facial discrimination.
Page v. Lexington County School District One (4th Cir.)
October 27, 2007
First Amendment: Government speech — school district statements on proposed legislation — hyperlinks on school web sites.
Thompson R2-J School District v. Luke P. (10th Cir.)
October 16, 2007
IDEA: substantive standard for FAPE — self sufficiency.
M.A.L. v. Kinsland (6th Cir.)
July 24, 2007
First Amendment — student distribution of literature — time, place and manner regulations.
Busch v. Marple Newtown School District, No. 05-2094 (E.D. Pa. May 31, 2007)
June 21, 2007
A Pennsylvania federal district court has ruled that school officials did not violate a student’s or his parent’s free speech or equal protection rights, or the Establishment Clause, when they barred the parent from reading Bible verses in class as part of an elementary school social studies unit.
John M. v. Board of Education of Evanston Township High School District 202 (7th Cir.)
June 7, 2007
IDEA: Current educational placement.
Board of Education of the City School District of the City of New York v. Tom F. (U.S. Sup. Ct.)
May 15, 2007
IDEA: Tuition reimbursement.
TSSAA v. Brentwood Academy (U.S. Sup. Ct.)
February 20, 2007
First Amendment — standard for free speech challenge to contractual terms promoting educational mission.
BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC (U.S. Sup. Ct.) - Merits Brief
February 20, 2007
Employment — Title VII — Final decisionmaker liability for racial animus of subordinates.
Winkelman v. Parma City School District (U.S. Sup. Ct.)
January 23, 2007
IDEA: Parent representing child pro se in court.
Morse v. Frederick (U.S. Sup. Ct.in support of Petition for Certiorari)
January 17, 2007
First Amendment: student expression – classification of speech, i.e. Tinker, Fraser, or Kuhlmeier – qualified immunity.
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