When I was studying for the bar many, many years ago, I remember waking up about six weeks before the exam with a sinking feeling in my stomach, wondering “How am I ever going get this all finished in time?!” I can imagine many educational leaders are feeling the same dread looking at the calendar this week, wondering how in the world their institution is going to come into compliance with the new Title IX regulations by the August 14, 2020 implementation date. It’s not a matter of lack of effort–just like I did that summer before the bar, I know that you all have been working diligently to get everything done. But the sheer amount of work there is to do can be overwhelming. That morning, during my bar summer, after I woke up I sat down and came up with a plan for how to get everything done by the date of the exam, and began checking things off the list one by one. That, too, is the approach I recommend you take right now to help your educational institution down the path to compliance by August 14. Here’s how to do it.
For anyone taking the ostrich approach to the Department of Education’s Title IX regulations—sticking their heads in the sand and hoping that a lawsuit will come along to blow these pesky regulations away—there may be some hope. Two recently-filed lawsuits, one by attorneys general from 17 states, including Illinois, and the District Columbia and another by the state of New York, seek to invalidate the new regulations under the Administrative Procedure Act or, at the very least, obtain an extension of the August 14, 2020 implementation date. Despite these and other pending lawsuits—including one from the ACLU filed in May—schools, colleges, and universities should continue to prepare to implement the new Title IX regulations on August 14, 2020. Educational institutions may wish to consider including language in new policies and procedures allowing quick changes if a challenge to the regulations proves successful. This would allow a return to governing documents currently in effect without normal delays inherent in educational policymaking if warranted by a court ruling.
Continue Reading Don’t Count on Lawsuits to Save Schools from the New Title IX Regs
It seems like all we talk about these days in the Title IX world is sexual harassment, as we scramble to implement new Title IX regulations that go into effect in August. Yet, this week brought significant news with respect to another side of Title IX—the rights of transgender students under the Federal law.
In a Letter of Impending Enforcement Action from May that came to light yesterday, the Department of Education’s Office for Civil Rights (OCR) threatened to take away federal funding from six Connecticut public high schools and the state’s athletics conference for allowing “biologically male” transgender female students to compete on girls athletic teams, which OCR found violates the Title IX rights of the cisgender female students on the teams. According to OCR, female students, unlike their male counterparts, were denied the ability to compete “on a level playing field” in athletics by not being allowed to compete against only cisgender female students.
We know that the Department has been pulling back on Title IX protections for transgender students for some time, so why is this news? Because as Title IX has become less useful for transgender advocates, they have turned to state laws (including in Illinois), which have been instrumental in the fight for access to facilities and activities based on gender identity in recent years.
Federal law generally preempts state law, however, so if Title IX prohibits providing equal access because of impacts on cisgender female students, schools may be required to disregard state law to avoid violating Title IX. Although the OCR decision appears to be limited to the realm of athletics, we have come to learn that with OCR these days, nothing is certain. This OCR letter, coupled with an imminent decision from the U.S. Supreme Court in the Title VII case Harris Funeral Homes v. Equal Employment Opportunity Commission, threaten to drastically upset the certainty for educational institutions regarding the laws governing transgender rights in schools. Continue Reading More Title IX Turmoil: OCR Athletics Decision Puts Transgender Rights in Flux
As you are all well aware by now, the U.S. Department of Education recently issued its final Title IX regulations. While we continue to wade through the over 2,000-page document issued by the ED (consisting of the new regulations and the preamble commentary), OCR provided some additional guidance on its blog regarding the requirement to post Title IX information on school websites under the new regulations. Specifically, the new regulations require schools to post the following on their websites:
- Contact information for the school’s Title IX Coordinator(s). Contact information must be prominently displayed on the school’s website and must include the name(s) of the Title IX Coordinator(s), an office address, a phone number, and an e-mail address.
- The school’s non-discrimination policy. The non-discrimination policy must also be prominently displayed and must include notification to students, employees, applicants, parents and guardians, and others that Title IX requires the school not to discriminate based on sex and that the school does not discriminate.
- Training materials used to train the school’s Title IX personnel. Materials must be made publicly available on the school’s website, which the ED intended to serve as a safeguard to improve impartiality, reliability, and legitimacy of Title IX proceedings. OCR makes clear in its blog post that schools are not permitted to merely list topics covered or summaries of trainings. Rather, a school must post “all materials” on its website.
One issue that is likely to come up when fulfilling the training materials posting requirement is the need to obtain copyright authorization for any materials posted. This means that if a school utilizes training materials from an outside organization, firm, or consultant that are copyrighted or otherwise protected as proprietary, the school must obtain authorization from the copyright holder to publish any training materials. OCR makes clear that, if a school is unable to secure copyright authority, it must create or obtain alternative materials that can be posted to the school’s website. Navigating the law in this area can be particularly complicated, so our Title IX team is here to support your school when considering the best training options and obtaining appropriate copyright authorization for posting materials.
Keep in mind that these posting requirements will not go into effect until August 14, 2020, when the new Title IX Rule officially becomes effective. But it is important to consider this information now and start working on your school’s policies and training to be appropriately prepared, as you will need to have all the required information posted come August 14.
For more information on posting requirements or the new Title IX rule, contact a member of our Title IX team.
With guest co-author Erin Walsh
Last week, the U.S. Department of Education issued a Questions and Answers for Postsecondary Institutions Regarding the COVID-19 National Emergency document reminding colleges and universities that responsibilities to accommodate students with disabilities and process Title IX sexual misconduct complaints continue during the coronavirus disease 2019 public health crisis. Although the FAQ is aimed at postsecondary schools, the discussion is equally applicable to K-12 schools. The gist of the FAQ is that, although some disability accommodations may be more likely to be unduly burdensome or a fundamental alteration of a school’s programs or activities because of COVID-19, educational institutions must nonetheless take all steps, “to the maximum extent possible,” to allow students with disabilities to participate in and receive the benefits of or services offered by their schools. With respect to Title IX, the FAQ is a reminder that although delays in the processing of Title IX complaints may be justified by the public health crisis, hearings and investigations should not be delayed simply because in-person interviews or hearings are “cumbersome or not feasible.” Nor should blanket policies putting all investigations or disciplinary proceedings on hold be used. Institutions should still accept harassment complaints even if they are only offering distance learning and should notify community members if there have been changes to the way complaints can be submitted or are processed. The FAQ also reminded schools that no-contact and no-communication agreeme3nts or orders between complainants and respondents should continue to be enforced, although some may require modification because of changed circumstances due to COVID-19. Continue Reading Lessons from Recent ED Guidance on Civil Rights in Education Under COVID-19
One of the biggest changes from the new Title IX regulations issued by the Department of Education last week is that, beginning in August 2020, OCR’s complaint findings will be based on standards very similar to those used by federal courts for decades in lawsuits for money damages under Title IX. The U.S. Supreme Court set forth the standards in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Those cases included the fundamental ideas that have now been codified—in modified form—in the Department’s final rule, such as the ideas that a school can only be responsible for sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”; when it exercises “substantial control” over the harasser and the “context” of harassment; and when it has “actual knowledge” of the sexual harassment. These cases also are the root of the “deliberately indifferent” standard that OCR will now use to decide if a school has violated Title IX. What do these standards mean, and what lessons can your institution learn from the court cases in which they were created and fleshed out over the past two decades? Continue Reading Why Your Next OCR Title IX Complaint May Feel Like A Lawsuit
As we discussed in our blog post on May 6, 2020, the U.S. Department of Education issued on that day its long-awaited Title IX regulations, raising panic and concern amongst stakeholders on every part of the Title IX spectrum. Our Title IX Insights blog team provided some initial thoughts on the new regulations during a webinar on May 11; you can watch the recording here. This blog post answers some of the questions we raised during the webinar as well as some questions we received from the audience but did not have time to address. For more on the details about the final rule, check out the webinar recording and stay tuned to our blog for more insights to come. Continue Reading 9 for IX: Nine Essential Questions Answered About the New Title IX
After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days. Continue Reading They’re Finally Here: U.S. Department of Education Issues Title IX Regulations
Despite efforts by schools and advocacy organizations, state attorneys general, and members of Congress and the Senate, the Department of Education’s proposed Title IX rules reportedly have cleared Office of Management and Budget (OMB) review and sources say that the final rules are coming—soon. Although the timing of the release during the coronavirus disease 2019 (COVID-19) crisis is far from ideal, employees with Title IX responsibilities may be able to use some of the well-documented time lost in productivity on normal day-to-day tasks during this crisis to prepare for the coming changes. In addition to signing up for our Franczek blogs and alerts so that you can receive our insights on the rules if and when they are released, we recommend that schools, colleges, and universities do the following four tasks now to prepare for the impending regulatory changes. Continue Reading Lemons into Lemonade: 4 Coronavirus Shutdown Tasks to Prepare for Title IX Rules