Federal Legal Update. AASPS Conference June 4, 2018 Austin, TX. Tammy T. Carter Senior Staff Attorney

Transcription

1 Federal Legal Update AASPS Conference June 4, 2018 Austin, TX Tammy T. Carter Senior Staff Attorney

2 Topics Covered - Most recent United States Supreme Court Cases - Recent United States Circuit Court Cases - Immigration/DACA - NSBA Advocacy Efforts - Highlights of Federal Regulations and Agency Activities - NSBA Resources

3 UNITED STATES SUPREME COURT CASES

4 South Dakota v. Wayfair, Inc. No Petition for writ of certiorari granted ( U.S. Jan. 12, 2018)

5 South Dakota v. Wayfair, Inc. - Issue: Whether a state has the authority to require an out-ofstate online retailer with no physical presence in the state to collect sales tax on transactions with consumers who reside within the state.

6 Background - In 2016, South Dakota enacted Senate Bill 106, requiring outof-state retailers to collect and remit sales and use tax if they annually conduct with South Dakota residents either (1) $100,000 worth of business, or (2) 200 separate transactions. S.D. Codified Laws et seq. (2016). - The South Dakota legislation was designed as a direct response to Justice Kennedy s invitation in Direct Marketing Association v. Brohl to present an appropriate case for this Court to reexamine Quill 135 S. Ct. 1124, 1135 (2015) (Kennedy, J., concurring).

7 Wayfair (Cont d) - Quill is the Supreme Court case that permitted states to impose taxes on out of state businesses provided they had a sufficient physical nexus with the state. - Shortly after the law was enacted, South Dakota sought a declaratory judgment in state circuit court to enforce the legislation against three out-of-state retailers. The State Supreme Court of South Dakota eventually concluded that the U.S. Supreme Court s precedent in Quill forbade South Dakota from enforcing the legislation against the out-of-state retailers.

8 Wayfair (Cont d) - NSBA joined a brief filed on November 2, 2017, with 12 national organizations advocating for local and state governments that focused on the devastating effect of the Quill restriction on states and local governments that heavily depend on sales tax revenues to remain solvent, but cannot access the billions of dollars in potential state funds that the digital economy would generate. - Oral argument was held in Wayfair on April 17, 2018.

9 Janus v. American Federation of State, County and Municipal Employees 31, No

10 Janus (Cont d) - Since Abood v. Detroit, which was decided in 1977, the United States Supreme Court has recognized the fact that unions should be able to charge fair share fees to workers who are not members of the union. Fair share fees are minimum fees that non-union members pay to the union for the collective bargaining services that the union provides.

11 Janus (Cont d) - In Janus a public employee challenged a provision of the Illinois Public Relations Act, which allows unions representing public employees to collect fair share fees from non-union members. The union asserted that all employees should contribute since all of them benefit from the collective bargaining efforts in which the unions engage. - The district court dismissed the action. The Plaintiff appealed to the Seventh Circuit Court of Appeals.

12 Janus (Cont d) - The Court of Appeals held that the claim was properly dismissed because of the Supreme Court s ruling in Abood. - The Plaintiff filed a petition for certiorari in the United States Supreme Court, which granted review on September 28, 2017.

13 Janus (Cont d) - Issue Presented: Whether the Supreme Court should overturn Abood and hold that public sector agency fee arrangements should be declared unconstitutional under the First Amendment. - Oral arguments in Janus were heard on February 26, We expect a decision before the session ends this year.

14 Circuit Court Cases

15 Davison v. Rose, No (4th Cir. Jul. 28, 2018) - Issue: Whether the private social media account of a school board member is a public forum, and if so, does the First Amendment apply to messages posted by community members, or is it instead a personal platform in which the account holder may determine the expression that appears there.

16 Background - A parent regularly spoke at school board meetings and blogged about his complaints against the school system, often posting comments on the private social media pages of school board members. - Several individual school board members deleted comments the parent posted on their social media pages and blocked him from posting any more comments to those accounts.

17 Davison v. Rose (Cont d) - The parent brought a claim in federal court asserting that the board members violated his First Amendment rights when they blocked him. - He also asserted that the school board members actions were in retaliation for his constant public criticism of the school system.

18 Davison v. Rose (Cont d) - The district court dismissed the claims against the individual school board members, finding they did not knowingly violate a clearly established First Amendment right of which a reasonable public official would have known. The court noted that the law is not clear as to whether private social media pages created by public officeholders are public forums subject to the First Amendment. - The parent appealed to the 4th Circuit. NSBA joined a brief with other organizations representing state and local entities.

19 NSBA Brief for Davison v. Rose - The NSBA brief filed on December 7, 2017, argued that: Only a governmental unit may create a public forum. Private social media accounts of public officeholders are neither traditional nor designated public forums. Unless a forum is a traditional public forum, such as a street, sidewalk, or park, the government must act intentionally to create a public forum.

20 - The brief also argued that: Davison v. Rose (Cont d) - social media platforms such as Facebook or Twitter are not themselves government property or programs, and are not per se public forums. - Additionally, the personal social media accounts of users, even users who are public officeholders, are not public forums.

21 IMMIGRATION

22 DACA Refresher - Deferred Action for Childhood Arrivals (DACA) began in Allowed certain young people who arrived with undocumented parents to apply for protected status: the government would forbear removal action against undocumented individuals for a designated period. - Involved extensive application process & background check. - Authorized hundreds of thousands of young people for deferral of removal proceedings and allowed them work authorizations.

23 DACA (Cont d) - On September 5, 2017, the federal government issued a memorandum rescinding DACA. After the expiration of grantees current terms, they will immediately face loss of employment, loss of certain benefits, and be subject to deportation.

24 Cases Challenging the Rescission of DACA - Vidal v. Nielsen, No. 16-CV (NGG) (JO) (U.S. Federal District Court for the Eastern District of New York) (consolidated with New York v. Trump, No. 17-CV (NGG) (JO)). - Regents of the Univ. of California v. U.S. Dept. of Homeland Security, Consolidated Case Nos , , , , , , , (9th Circuit). - These cases were brought separately in New York and California Federal District Courts; one by the University System of California, and the other by Fifteen states and the District of Columbia.

25 NSBA Action - NSBA joined with several state associations and national education groups led by the NEA and filed briefs in the both cases. They are now on appeal to the 9th and 2nd Circuits. - The briefs focus on ways the DACA program motivated young people to stay in school, further their education and choose productive careers, including in public schools.

26 NY Federal District Court Ruling - The lower court acknowledged employees would suffer irreparably because they will lose employability and health insurance coverage, which would strain state healthcare systems, and that the DACA rescission would have profound and irreversible economic and social implications. It granted injunctive relief to the plaintiffs. - The Trump administration has appealed the decision of the district court to the U.S. Court of Appeals for the 2nd Circuit. NSBA is also on the amicus brief before the appellate court.

27 California & DACA - The California Federal District Court granted a preliminary injunction requiring the administration to maintain the DACA program nationally. - The Trump administration asked the U.S. Supreme Court to consider a direct appeal. - The Supreme Court declined the request. The Administration appealed to 9th Circuit.

28 DACA- Additional Cases - In CASA de Maryland, et al. v. Dept. of Homeland Security, et al. (8:17-cv (D. Md.)), the plaintiffs filed suit under a variety of claims seeking to enjoin the rescission of DACA. - The court dismissed the claims, but did grant a nationwide injunction prohibiting Homeland Security from sharing or using DACA recipients private information for enforcement purposes against them or their family members.

29 DACA -Additional Cases (Cont d) - In NAACP v. Trump, et al. ( 1:17-cv (D.D.C.)) and Trustees of Princeton, et al. v. United States of America, et al. (1:17-cv (D.D.C.)), a judge in the U.S. District Court for the District of Columbia ordered that the memorandum terminating the DACA program be vacated. The court reinstated the status quo, which reinstated the program as it was before President Trump eliminated the program. - This order, however, gives the government 90 days to provide a better explanation for why it ended the program.

30 DACA Additional Cases (Cont d) - In Texas, et al. v. Nielsen, et al. Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia filed a lawsuit in the U.S. District Court for the Southern District of Texas, Brownsville Division, challenging the creation of the DACA program. - They assert that the creation of the program violated both the procedural and substantive requirements of the Administrative Procedures Act. They have asked for a preliminary injunction to halt the DACA program from operating during the pendency of their suit. The court has not ruled.

31 DACA s Status - While these cases wind their way through the court system, people will not be able to submit first-time applications. However, because of the injunctions issued in New York and California, USCIA is still required to accept, and is currently processing, DACA renewal applications from people who have previously received deferred action and work permits.

32 Marching Toward the U.S. Supreme Court

33 INSIDE THE BELTWAY

34 Secretary s Summit on School Safety and Discipline - The Secretary of Education is holding sessions with advocates on the issue of school safety. - NSBA has been invited to the table and has addressed possibilities for assisting schools in their attempts to address safety issues.

35 Safety Resource Possibilities - Federal dollars to help schools prepare and execute comprehensive safety plans. - Consulting services, new technology implementation, retrofitting and planning for new school designs, etc. - Federal dollars to replace/rebuild classrooms and facilities after a tragedy ( Both the Sandy Hook and Parkland schools opted to discontinue the use of those facilities that had been the site of tragedies).

36 Law Enforcement Assistance - Feds should support efforts of school districts to engage law enforcement to put into place school safety programs. - NSBA believes that the better option for many districts, instead of arming teachers, is to ensure local law enforcement in the form of school resource officers is available to schools and urged the continuation of grants and federal dollars to support this effort.

37 Centralized Federal Resource Platform - Lastly, NSBA urged the Administration to pool its resources in a centralized hub or clearinghouse to identify and make available information on how local school districts can access those federal resources on school safety from planning to aftermath.

38 FEDERAL REGULATIONS AND AGENCY ACTIVITIES

39 United States Department of Justice - On October 4, 2017, Attorney General Sessions issued a new Department of Justice guidance. This guidance reverses the guidance developed by the Obama administration and indicates that Title VII does not protect transgender employees. Since 2012, the EEOC has taken the position that transgender persons are covered by Title VII, which puts the two at odds. - You can access the guidance at:

40 Attorney General s Guidance - It is also inconsistent with the recent ruling in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No ( 6th Cir. Mar. 7, 2018), where the Sixth Circuit Court of Appeals ruled that Title VII s prohibition against discrimination on the basis of sex applies to transgender employees.

41 Department of Education / OCR: Transgender Students - Although it has not promulgated any official guidance documents, OCR has developed an internal policy which indicates that it will decline to investigate any complaints alleging that transgender students are being denied access to restrooms and locker rooms based on gender identity. - Secretary DeVos also told Congress in March that she will not change that policy until Congress or the U.S. Supreme Court interprets Title IX as applying to transgender students.

42 Department of Education: Case Processing - OCR has a new case processing manual. Under this new manual, investigators are allowed to dismiss bulk complaints based on the fact that they are placing an unreasonable burden on OCR resources. - You can find a copy of the manual at:

43 Department of Education: Website Accessibility - Many of the bulk complaints that are being dismissed are the website accessibility complaints that were being filed. The Department has now launched a new Website Accessibility Technical Assistance Initiative to help schools. - Information about the initiative can be found at:

44 Department of Education: FERPA - On November 2, 2017, the Department of Education issued what is called the Agora Policy Letter. The letter opines that: A parent or eligible student cannot be required to waive the rights and protections of FERPA as a condition of acceptance into an education institution or educational training or services. Schools cannot force students to submit to terms of use policies by third-party online learning platforms, in order to enroll in school, if such platforms contain terms that violate the child s rights under FERPA. When a school does require that an ed tech service be used as a condition of enrollment, that service must either comply with FERPA s school official exception requirement or parents must be given the right to opt out. ( pdf)

45 U.S. Department of Agriculture - Many schools complained about Obama era regulations that changed the dietary guidelines for school meals. - On May 17, 2017, the U.S. Secretary of Agriculture, Sonny Perdue, signed a proclamation indicating that the USDA will provide greater flexibility in nutritional requirements for school meals in order to make them both healthful and appealing and to restore local control to schools.

46 U.S. Department of Agriculture (Cont d) - The Department has promulgated an interim final rule, for , which will become effective on July 1, The rule will: Allow schools the option of providing flavored low-fat milk; Allow them to include grains that are not whole-grains in weekly menus; and Allow them to retain the sodium target at level 1.

47 Thank You! NSBA is working with and through our State Associations, to advocate for equity and excellence in public education through school board leadership.