SCOTUS Eliminates Bad Faith / Gross Misjudgment Standard for Education Disability Discrimination Claims

In a unanimous decision, in AJT v. Osseo Area Schools, Independent School District No. 279, SCOTUS clarified that Plaintiffs advancing discrimination claims under the ADA and 504 need not allege or prove that the school acted in bad faith or with a gross misjudgment when it denied a reasonable accommodation request in education. 

This case gets it right, but what's interesting is the sideshow of the dispute between the concurring opinions of Thomas and Sotomayor as to whether a failure-to-accommodate always requires proof of intent to discriminate regardless that the statute is silent on that issue. Until that issue is resolved, Plaintiff's counsel would be well served in alleging discriminatory animus in their pleadings and in the heart of their case.

Antisemitism Definition for Title VI Education Discrimination Passes House

Title VI prohibits discrimination on the basis of race, color, and national origin. Notably absent from that list is religion. So, are jews protected from antisemitism in elementary, secondary, and post-secondary (colleges & universities) schools?

In 2021, former President Trump signed Executive Order 13899 on Combating Anti-semitism, which explains that "[i]n enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments and agencies (agencies) charged with enforcing Title VI shall consider the following: (i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, 'Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews.  Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.'” 

An explanation of the impact of that Executive Order on education was then set forth in a Q&A by the Department of Education, here. 

Now, the US House of Representatives have passed a codified version of this EO and further defined antisemitism in the face of rising discrimination faced by jewish students in colleges and universities throughout the country. We await the Senate and then the President to see if this Bill, HR 6090, will become the law of the land. 

If this bill is passed, it expressly provides that the definition of antisemitism under Title VI "means the definition of antisemitism adopted on May 26, 2016, by the IHRA, of which the United States is a member, which definition has been adopted by the Department of State." In fact, the bill states that antisemitism can constitute a hostile educational environment, under Title VI, as follows: "individuals who face discrimination based on actual or perceived shared ancestry or ethnic characteristics do not lose protection under such title for also being members of a group that share a common religion."

While HR 6090 should become the law, the real question is why Congress didn't just expand Title VI to include religion as a protected class to be free from discrimination? Fortunately, states like New York have done just that in Executive Law 296(4). So, if you are a victim of religious discrimination in education in New York, you have rights.

To learn more contact Lieb at Law

New Sex Discrimination Federal Regulation Effective August 1, 2024

Title IX's anti-discrimination obligations on elementary schools, secondary schools, postsecondary institutions, and other recipients of federal financial assistance have been updated and become effective August 1, 2024, by regulation 89 FR 33474 (34 CFR 106)

Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” absent certain exceptions. 20 U.S.C. 1681.

Consistent with Title VII's SCOTUS decision in Bostock v. Clayton County, the regulations define sex broadly to "include[] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity" in § 106.10.

The regulations have been updated for the following purposes:

• "to provide greater clarity regarding: 
• the definition of “sex-based harassment”; 
• the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and 
• recipients' obligations to provide an educational environment free from discrimination on the basis of sex."
• to ensure that "recipients' procedures for investigating and resolving complaints of sex discrimination are fair to all involved." 

In fact, the regulations require grievance procedures under § 106.45.

These regulations are the floor under which states and locales cannot go, but don't forget that local laws like New York State's Human Rights Law provide for emotional distress damages whereas Title IX does not. 

Important Discrimination Bill Passes NYS Senate - It's on the Assembly Now

On 3/13/2023, S3255 passed the NYS Senate and was delivered to the Assembly. 

This Anti-Discrimination Bill is so important to school-children and governmental employees facing discrimination in the State of New York.

Currently, when suing many governmental defendants for discrimination, such as school districts, victims only have one year to bring their claims (except for sexual harassment claims) before the New York State Division of Human Rights. This bill would make the limitations period three years. 

The bill is particularly important to bridge the gap between suing the government and non-governmental actors. When suing a non-government actor for discrimination, a victim can bring a court case, rather than a claim before the New York State Division of Human Rights, under the New York State Human Rights Law, within three years of the wrongful acts of discrimination. 

However, discrimination court cases against the government are often subject to a notice of claim statute where the statute of limitations is effectively limited to ninety days. 

As a result, many victims of governmental discrimination are out of luck when brining claims because they did not act quickly enough. 

Often times, a claim against a school district for permitting harassment in school is an ongoing case where acts over years demonstrate the discrimination, but recent events only tell an incomplete story. 

This law will bring fairness to the state and protect victims of discrimination.  

We strongly support the passage of this Bill and hope that the Assembly passes it swiftly.

Major Discrimination Update - NYS Human Rights Law Expanded to Prohibit Discrimination on Citizenship / Immigration Status

Citizenship Status and Immigration Status are now protected classes throughout the State of New York when it comes to discrimination in housing, public accommodations (commercial real estate), education, and employment.

Effective December 23, 2022, A6328A has amended the New York State Human Rights Law to protect a new group of New Yorkers, those who are subjected to different terms, conditions, and privileges based on their citizenship status and immigration status. It protects against discriminatory publications (i.e., advertising / statements). It protects from hostile environments. It is all encompassing to stop discrimination. 

According to the law, Citizenship or Immigration Status is defined to mean "the citizenship of any person or the immigration status of any person who is not a citizen of the United States."

Employers, landlords, and educational administrators may have a gut pushback to this law and wonder about issues it may cause for them if they are required to verify legal status as part of their business. Have no fear, the law permits verification and consequential adverse actions "where required by law." However, that does not mean that you can check status whenever you feel like it or believe the law requires it. Instead, it is incumbent upon any person who plans to verify status to first identify the legal basis for why status is required to be verified before doing anything. Otherwise, employers, landlords, and educational administrators should expect to be defending a lawsuit that can easily result in damages over six-figures.