Fed's Letter on Student Discipline

On January 8, 2014, the Office for Civil Rights of the U.S. Department of Education (OCR) and the Civil Rights Division of the Department of Justice (together "the Feds") issued a joint "Dear Colleague Letter" (the Letter) providing guidance on administering student discipline without discrimination on the basis of race, color or national origin. While the Feds recognize the need to maintain safe and orderly educational environments within our schools, research has shown that students of certain racial or ethnic groups tend to be disciplined more frequently and, in some cases, more severely than their peers. Federal law prohibits public schools from discriminating in the administration of student discipline based on certain personal characteristics, such as race, color and national origin.

The Letter and accompanying resource guide urge schools to review their discipline policies and practices in light of recent data indicating that students of color and students with disabilities are disproportionately suspended and expelled from school. The Letter also is critical of the use of the "zero tolerance" approach to discipline.

 Three general areas are examined in the guidance: (1) prevention and creating positive school climates; (2) developing clear, appropriate, and consistent expectations and consequences to address this behavior; (3) establishing fairness, equity, and continuous improvement. Although the Letter does not create any new legal mandates, it does provide guidance and recommendations and implies that continued use of "zero tolerance" policies and potentially discriminatory practices may leave schools more vulnerable to claims of unlawful discrimination on the basis of race, color and national origin.

According to the Letter, discriminatory discipline can be shown when (a) similarly-situated students of different races or national origins are disciplined differently for the same offense; (b) districts strictly enforce a discipline policy against members of one racial or ethnic group, while overlooking or minimizing the same violations committed by members of another group; (c) administrators or teachers intentionally targeting a racial group for "invidious" reasons, e.g., adopting a dress code policy which targets a style of clothing that students of a particular race or ethnic group are likely to wear; or (d) a teacher or administrator acts with racially discriminatory motives, e.g., the educator utters a racial or ethnic slur when disciplining a student. Districts also can violate federal law when they implement facially neutral policies that were not adopted with intent to discriminate but which nevertheless have an unjustified effect of discriminating against students on the basis of race or national origin. "Disparate impact" situations require an examination of whether a disciplinary policy resulted in an adverse impact on students of a particular race or national origin, as compared with students of other races or national origins.

The Letter offers a number of practical examples of situations in which the Feds might find discrimination in the administration of student discipline. It also sets out what the Feds consider when investigating claims of discrimination, emphasizing the importance of keeping good records on student discipline and the expectation that districts will cooperate fully in investigations conducted by OCR.

For more information about this topic, or to request assistance in reviewing your discipline polices or practices, please feel free to contact one of our attorneys.

April 2014 Dear Colleague Letter.pdf

What Are Permissible Religious Activities in Schools?

School officials have heard a lot recently regarding what religious activities and events are not permitted in public schools based on the Establishment Clause principle of "separation of church and state." We thought it would be helpful to review which religious practices and activities on the part of students, employees, and others are permitted in the schools pursuant to the Free Exercise Clause and other First Amendment provisions. Though there are gray areas that depend on the specific facts of a situation, the following is a general guide concerning what students, school employees, and other persons or organizations may do on school grounds concerning religious practices and events.

Students Can Pray In Schools

So long as students do not infringe on the rights of others, students have the right to practice their religion on school grounds and at school-sponsored events. Students may read scripture; say grace before meals; and pray before tests. Students may pray and discuss their religious views with other students in informal settings on school grounds, so long as they follow the same rules applied to other student activities and speech. Prayers and discussions regarding religious beliefs must be student-initiated and student-led. Teachers, administrators, and coaches cannot organize prayer activities on school grounds during school hours or during school-sponsored events, such as athletic contests or graduation ceremonies. Students may distribute religious material to their peers to the same extent that students are allowed to distribute non-religious materials and so long as the distribution does not interfere with school activities and the materials are not school-sponsored or endorsed.

Students may wear clothing and accessories expressing their religious beliefs, so long as the items in question are not a distraction to educational activities and do not violate a specific provision of a Student Dress Code.

If relevant to the subject matter being taught or discussed, students may express their religious views during a class discussion or as part of an assignment. Students cannot, however, evangelize their peers in the classroom or during any other school setting where there is a captive audience.

South Carolina law requires that "all schools shall provide for a minute of mandatory silence at the beginning of each school day." While students have the right to pray to themselves during this moment of silence, teachers should not encourage or discourage students from using the moment of silence for a particular purpose.

Students Can Start Religious Clubs, Organizations, and Prayer Groups

South Carolina law provides that students may organize prayer groups, religious clubs, "See you at the Pole" events, and other religious gatherings before, during, and after school to the same extent students are permitted to organize other non-curricular student activities and groups. School facilities may be used for religious gatherings if those facilities are used by other student-led groups. Similarly, students may take advantage of school media (newspapers, announcements, flyers, etc.) to advertise meetings and activities of religious groups and clubs if other clubs and organizations have the same right under school rules. Teachers may not lead, participate or promote these organizations, but they may monitor club meetings to ensure compliance with school policies.

Students Can Be Excused From Assignments for Religious Reasons

Schools should attempt to accommodate requests from parents and students to be excused from specific classroom assignments or activities for religious reasons. School officials should first ask whether the request is based on a sincere religious belief. It is important to note that the school does not have to agree with the belief or find it logical, just that the belief is sincerely held by the student. Next, the school should determine whether the assignment or activity would contradict the student's religious beliefs. From there, the school should take a course of action that does not violate the student's religion if such a course of action is available and feasible. For example, if the teacher assigns a book that the student or parent finds objectionable on religious grounds, the teacher may assign an alternate selection.

School Employees Can Pray at School

As government employees, school personnel are required to be neutral concerning religion while carrying out their job responsibilities. School employees should not pray with or in the presence of students during the school day. Employees may pray together or meet for scripture study or other religious discussions on school grounds, so long as the activity is outside the presence of students and does not interfere with the rights of other employees. Employees may wear religious accessories (crosses, yarmulkes, head scarves, etc.), but should avoid wearing clothing with proselytizing messages.

Teachers Can Teach About Religion

The law does not require that classrooms be "religious-free zones" when a lesson involving a discussion about religion is educationally relevant. When planning an activity that includes religious content, teachers should ask themselves:

1. Is there a distinct educational purpose to the lesson other than the promotion of religion?

2. Does the activity serve the educational mission of the school or the goals of the course?

3. Have measures been taken to ensure that no student or parent will feel like an outsider because of the activity?

Schools may instruct about religion in an educational manner, so long as the purpose is to teach rather than preach. For example, teachers may teach about the tenets of Christianity as part of a larger discussion on the tenets of other religions. It should be noted that Bibles or other holy books should not be handed out to students by school employees.

Religious Groups Can Use School Facilities After School Hours

Schools may allow outside religious organizations to use school facilities after school hours if such access is granted to other groups. Steps must be taken to ensure that the religious organization or its events are not promoted or endorsed by the school. To that end, teachers may attend religious services and events held on school grounds after hours if they are doing so in their individual capacity, and not as a school employee. Flyers promoting religious services may be distributed by churches, temples and synagogues on school grounds to the extent that schools allow other non-education related groups to do the same (e.g., local recreation commissions and boys and girls clubs).

If your district has specific questions regarding your district policies or needs assistance with a specific issue regarding religion in your schools, please feel free to contact our office.

Joseph Bias Joins Duff, White & Turner

We are pleased to welcome Joseph Bias as an associate with the firm. Mr. Bias is a graduate of Wofford College (B.A., Humanities) and the University of South Carolina (J.D.). He has worked as an assistant public defender with Richland County and was a law clerk for the Honorable Alison R. Lee. Mr. Bias will work in the areas of litigation, employment law, and education law.

09 Permissible Religious Activities.pdf

The Affordable Care Act: Is Your District Ready? - Update


Following is an update to the Affordable Care Act issue of the month that was published in June. The text of the original newsletter is still valid, but the compliance date now is January 1, 2015.

 On July 2, 2013, the United States Department of the Treasury issued a blog post stating that the mandatory employer and insurer reporting requirements and the employer shared responsibility payments under the Affordable Care Act (“ACA”) were being delayed from January 1, 2014 to January 1, 2015. While the language used in that post was ambiguous, our legal interpretation is that employers do not have to comply with the employer mandate until January 1, 2015. The South Carolina Public Employee Benefits Authority (“PEBA”) has also interpreted the delay in this way, and will not be changing its benefits plans for state employees until January 1, 2015.[1]

 This delay allows school districts with extra time to determine how the change in the law will affect budgets, workloads, and schedules, and districts should take this opportunity to make the transition to compliance with the law as smooth as possible. Set forth below is a brief list of what districts need to do during the 2013-14 school year.

  • Determine whether your district will limit variable hour employees to 29 hours per week or less. Review employees’ hours from April, 2013, to present to determine which employees met or exceeded 30 hours per week and whether it is feasible to limit those employees’ hours. Using the variable hour employees who worked 30 hours or more per week, calculate the cost of health care coverage for those employees. For those employees for whom it is practical to limit their work schedules to 29 hours or less, implement that change for the 2013-14 school year.
  • Inform variable hour employees that their hours may be limited to 29 hours per week or less. Consider these groups of employees: employees in daily substitute positions; long-term substitute positions; bus drivers, cafeteria, custodial, and maintenance workers; coaches; homebound teachers; tutors; dual position employees, etc. When appropriate, use available software or other recordkeeping to track those employees’ hours and limit their hours each week.
  • Inform district- and school-level supervisors of the limit and explain the purpose of the limit.
  • New Measurement Period: October 4, 2013 to October 3, 2014. Track hours of variable hour employees during this time.
  • New Administrative Period: October 4, 2014 to October 31, 2014. Offer eligible employees health insurance coverage; enroll employees who opt for coverage; retain Notice of Election forms for all employees.
  • New Stability Period: January 1, 2015 to December 31, 2015. Employees who worked 30 hours or more per week during the measurement period will remain eligible for insurance coverage during the entire stability period (unless they are terminated or resign), regardless of the number of hours worked during the stability period.
  • New Health Insurance Marketplace Coverage Options and Your Health Coverage notice: the South Carolina Public Employee Benefits Authority (PEBA) developed a version of the required notice (dated August 24, 2013) and sent that to all districts. Distribute this notice or one that contains similar information by October 1, 2013 for existing employees, including those hired as of July 1, 2013, and for new employees within 14 days of hire. You should also retain a copy of the notice in each employee’s personnel file.
  • The notice does not include information regarding penalties. We have drafted a sample memo to attach to the notice that explains that all US taxpayers must have health insurance as of January 1, 2014 or face a penalty of the greater of 1% of income or $95 (for 2014). This notice may be sent via email, provided certain criteria are met. A sample follows:


Letter to Employees Regarding Health Insurance


Dear Employees,

As many of you know, a new federal law, the Affordable Care Act, created significant changes in how Americans will obtain health insurance. Currently, most employees within our District are offered health insurance through the State Employee Benefits Authority’s health plans.

Employees who are offered coverage are those individuals in full-time, permanent positions and permanent, part-time teachers. Additionally, dependents of those eligible employees are offered coverage. Dependents are defined as spouses or children younger than age 26.

Originally, the US government planned to require large employers to expand that coverage to individuals who worked 30 hours or more per week, but that requirement has been delayed until January 1, 2015. For the 2014 calendar year, there will be no change in the types of employees who are offered coverage through the District. That means that District employees who are not considered permanent full-time employees or permanent part-time teachers will need to obtain health insurance through some means, other than the District, beginning January 1, 2014. Individuals may be eligible to get insurance through their spouse’s employer, Medicaid, Medicare, or TriCare.

The Affordable Care Act mandates that all United States taxpayers obtain health insurance coverage by January 1, 2014 or pay a penalty through their annual tax returns. The penalty for not obtaining health insurance for the 2014 year will be the greater of $95 per person or 1% of your annual income. (For example, if you earn $25,000 annually, your estimated penalty for not obtaining health insurance coverage would be $250.00.) That penalty increases every year after 2014.

The attached notice provides information on how you can shop for health insurance coverage online, beginning October 1, 2013. The online marketplaces will require you to enter the information contained in this form, so you must retain this information if you plan to shop for health insurance. Please read the notice carefully, and contact _________________ (BA, director of personnel, etc.) at _______________ or _______________ if you have any questions.

[1] The other legal interpretation is that the delay of penalties and reporting requirements is not the equivalent of a delay in the mandate to provide health insurance coverage to employees who work 30 hours or more per week. If your district agrees with this interpretation, your district can use its procurement processes to arrange for private health insurance coverage for those employees who work 30 hours or more per week, but are not currently eligible for PEBA benefits.


School districts, like many other employers, are grappling with the requirements of the federal Affordable Care Act (ACA), sometimes referred to as "Obamacare. " Among other things, the ACA requires employers with 50 or more employees to offer affordable health insurance benefits to full-time employees (those who work 30 hours or more per week). While this requirement seems straightforward, determining which employees are covered is not so simple, especially for school districts. Before the implementation date of January 1, 2014, school districts must classify groups of employees who work variable hours.

• For employees who have always been considered full-time, such as teachers, administrators, and full-time classified staff, there will be no change in the benefits districts offer.

• Many part-time employees clearly work less than 30 hours per week and will continue not to be offered coverage.

• Other employees, whose work hours vary on a daily or weekly basis, are referred to as "variable hour employees." These employees include daily substitute positions; long-term substitute positions; bus drivers, cafeteria, custodial, and maintenance workers; homebound teachers; tutors; dual position employees, and other semi-part-time staff. It is their status that must be determined. Please note that this includes temporary employees who average more than 30 hours per week during the measurement period.