Boyce: Navigating the crossroads of America in education law

Education law is changing in ways that create an uncertain legal landscape for educators and families. Federal decisions and guidance at times conflict with state policy priorities. This places educators in unique and often high-tension positions where they are called to mind the needs of students while staying compliant with the law.

This grand balancing act is a daily occurrence where each turn of the scales should be weighted toward what is most appropriate for the student. The year 2022 has brought us several major and conflicting changes: federal regulation and guidance regarding student protection concurrent with pursuit of conflicting policy at the state level. New interpretation of First Amendment protections for school staff and board members. And more talk of school safety priorities in the wake of a school shooting.

Does the intersection of education law and laws impacting transgender people require a roundabout yet? Well, there certainly is plenty of congestion that may justify the need: the U.S. Supreme Court’s Bostock v. Clayton County, the 7th Circuit Court of Appeals’ Whitaker v. Kenosha Unified School District and now numerous Indiana federal district court cases. We also have the roller coaster of federal administrative interpretation of Title IX addressing the protection of transgender students from discrimination and harassment. The United States Department of Agriculture announced that it could withhold federal funds for student meals from those schools that don’t have a policy prohibiting transgender discrimination. The Indiana attorney general, alongside a slew of other state AGs, are involved with litigation to clarify this as an over-exertion of federal executive power. We of course have a new front at the state level with the enactment of House Enrolled Act 1041 (2022) and the ensuing square-off between the American Civil Liberties Union of Indiana and the AG. A narrow preliminary injunction emerged whereby HEA 1041 remains in effect, except in the case of an anonymized student, and is up for appeal. This case and other simmering disputes set the stage for government intervention in how public school leaders deal with situations involving their transgender students.

House Bill 1134 (2022) and similar legislation attempting to regulate the “critical race theory indoctrination” did not make it into law. But the debate about how race should be considered in education is far from over. Most Indiana leaders would encourage the teaching of historic injustices through history and civics curriculum. The comfort level diminishes beyond that. At the same time, educators are being required by the federal government to track through the Civil Rights Data Collection program many data points, such as special education eligibility, gifted and talented program enrollment, referrals to law enforcement and arrests. And federal policy dictates significant financial consequences for public schools that have race-based disproportionality in those data points — another example of how educators are in the vice between federal and state policy regarding education law.

First Amendment protections in education have increased, particularly related to the free exercise of religion. In Carson v. Makin, SCOTUS held that states cannot prohibit religious institutions and schools from participating in voucher funding programs due to concerns about separation of church and state. Education policy from the court’s Kennedy v. Bremerton School District decision should lead to much more tolerance of religious displays by school employees at public school activities and leaves in the dust the “endorsement” test from Lemon v. Kurtzman. The court also decided Houston Community College System v. Wilson, a case in which a public school board member argued the board was not acting in the school’s best interest. He continued to publicize his criticism and was eventually publicly censured by the school board in a public meeting. The court held that this censure was allowable from the other board members as they have the same right to express themselves as does the one dissenting member of the board. The overarching message from the court from these cases is that public school (and all government) officials must continue to thicken their skin when being tolerant to expression. This doesn’t mean that educators can indoctrinate public school students regarding religious beliefs. It also does not mean that board members must keep quiet when calling out what they see as bad behavior from a rogue board member.

School safety is as important as ever, with schools being the unfortunate venue for violent, aggressive and dysregulated people displaying despicable acts against young and innocent victims. Talks on school safety tend to heat up following a mass shooting. This year we saw some action from the federal government. Congress passed the Bipartisan Safer Communities Act, which increases access to mental health care, includes juvenile records in background check procedures, includes telehealth in Medicaid coverage, allocates $750 million for states to institute red flag laws and increases funding for school-based mental health services. At the state level, Indiana has emphasized the use of school safety grants. There is talk from state leaders of a significant increase in those funds to allow for more well-trained school resource officers and access to mental health treatment. There is also discussion about how Indiana can do a much better job at providing the most violent and aggressive children with the treatment they require through intense day treatment programs and short-term residential programs.

Educating children is no easy task. This article should serve, if anything, as a reminder of what just part of a year can do to reroute educators in the core objective of providing for a literate and otherwise appropriately educated Indiana citizen.•

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Séamus Boyce is a partner at Kroger Gardis & Regas LLP in Indianapolis. Jackson Miller, KGR’s summer law intern, contributed to this article. Opinions expressed are those of the authors.