NSBA Council of School Attorneys is a membership organization of 37 affiliate state councils and over 3,000 attorneys nationwide, who work to improve the practice of school law and prevent lawsuits against public schools.

In State ex rel. Souffrance, Souffrance, an inmate at the London Correctional Institution, filed a Petition for Writ of Mandamus to compel the records custodian of Life Skills Center of Cincinnati, Inc., a community school, to provide access to attendance records, addresses, and telephone numbers of all students in a certain classroom in the months of May and June 2002.  He also sought records indicating which computer terminal a specific student used from May 1, 2002 through May 30, 2002.

The Court of Appeals for Hamilton County denied the inmate’s request by dismissing his Writ of Mandamus, and he appealed to the Ohio Supreme Court.  The Supreme Court affirmed the Court of Appeals’ decision.  A person’s records, if created and maintained when that person was a student, cannot be disclosed, even if the person is no longer a student.  The Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. 1232(g), bars such disclosure.

The EEOC relied on the U.S. Supreme Court’s landmark decision in Price Waterhouse. v. Hopkins, 490 U.S. 228 (1989), in which the Court found that sex stereotyping constitutes discrimination based on sex under Title VII.  Accordingly, the EEOC concluded that Title VII necessarily prohibits discrimination based on transgender status, which can be manifested as discrimination “against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”   The EEOC’s decision, which will also affect the private sector, clarifies that the EEOC will consider Title VII to apply to transgender people.

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The case involved a private attorney hired by the city of Rialto, California, to conduct an internal affairs investigation of a firefighter suspected of deceiving his employer about an extended medical leave.  The firefighter sued city officials, as well as the private attorney, alleging he was required to present proof related to his claims in violation of his Fourth Amendment right against unconstitutional searches.  The Ninth Circuit held the private attorney alone, among the defendants, was not entitled to seek qualified immunity because of his status as a private, not public, worker.  The U.S. Supreme Court reversed that decision, relying, in part, on the history of Section 1983.  The Court explained the law was intended to protect employees who worked for the government, whether on a full or part-time basis, recognizing that most governments do not have the resources to hire a full-time attorney.  Accordingly, the Supreme Court found that the private attorney was entitled to qualified immunity.

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The legislation is similar in all three states, and contains language stating the law “shall not be construed to promote any religious or nonreligious doctrine.”  There is also language about how it’s intended to “help students develop critical thinking skills they need in order to become intelligent, productive, and scientifically informed citizens.”  Critics, however, are not persuaded by such language, and contend that it’s simply another way to insert religion into public schools, after previous attempts to teach creationism, and later intelligent design, were rejected by federal courts as a violation of the separation of church and state.

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