The Title IX world is abuzz with expectation about the release of regulations from the U.S. Department of Education’s Office for Civil Rights. The general consensus is that even if the Department makes some changes based on the 100,000+ comments it received on the proposed rules, any final rules released will roll back many Obama-era protections for students reporting sexual misconduct. Yet, even as the Department continues with its plans to lighten the load on institutions in the Title IX sphere, it recently issued a “blistering” report finding numerous Clery Act violations at the University of North Carolina, many of which have implications for Title IX compliance. This situation shows that institutional consequences are still alive and well in Betsy DeVos’s Department of Education, and it’s not the first time in recent history that we have seen this to be true—we’re thinking of the oddly intense decisions from OCR against Chicago Public Schools and Michigan State University. No matter how confusing the Department’s actions may be, it is our job to try to understand and follow the rules, whatever they may be. What can we learn about responding to sexual misconduct and Title IX from this recent Clery report? Continue Reading Title IX Lessons from DOE Report Finding Clery Act Violations at UNC
My calendar has been full these past weeks with administrator trainings on Title IX, and one of the issues repeatedly raised is how age and maturity impact the analysis of whether conduct is sexual in nature. A recent report from Maryland provides a good opportunity to discuss this issue. Whether you are a K-12 or higher education administrator, this case is an important reminder of how age and maturity level come into play in student-on-student sexual misconduct investigations.
In this recent situation from Maryland, a group of fourth-grade boys was playing tag with a group of students, during which one boy made inappropriate comments and movement toward a group of girls. One of the boys wrapped his arms around one of the girls, as well. After an investigation, one of the boys was charged with a fourth-degree sex offense and second-degree assault.
The Office for Civil Rights (OCR) 2001 sexual harassment guidance addresses the issue of age and maturity, stating clearly as a preliminary matter that “[s]chool personnel should consider the age and maturity of students in responding to allegations of sexual harassment.” (2001 Guidance at iii). Where might age and maturity come into play in a case like this recent one from Maryland? Continue Reading What Title IX Administrators At All Levels Can Learn From Recent Sexual Assault Charges Against 10-Year-Old for Playground Tag Game
Readers of the blog know that I recently presented at the ATIXA West Coast Conference in San Francisco, California. My presentation was on Title IX and employee rights—an issue I realized when I worked at OCR that many institutions were not thinking about as much as they should. It was a great experience to share my thoughts on the subject with a room full of engaged Title IX and HR administrators from K-12 and higher education institutions. Among other topics, we discussed policy issues, tenure and academic freedom concerns, and unique retaliation issues in cases involving employees. I know not everyone was able to make it out to San Francisco, so I wanted to share some highlights of the presentation here. My colleague Emily Tulloch and I will also present a complimentary 30-minute webinar on this topic on December 10, during which we will address these issues more thoroughly. We hope you will join in on the conversation then! For now, keep reading for some of the key points.
Some of the educational institutions I investigated at OCR used a different policy when dealing with employee-on-student sexual misconduct complaints as opposed to student-on-student sexual misconduct complaints. As we will discuss more on our webinar, your institution needs to be a well-oiled machine to handle distinct policies in this sphere. What if a responding party is both an employee and a student? Students work for their schools, teachers take classes, and the lines between can be blurry. When a collective bargaining agreement comes into play, things can get even stickier. It’s possible to have varied policies, but it definitely takes work. An easier approach is to have one policy for any situation in which the reporting party is a student alleging sexual misconduct, regardless of the status of the responding party. There is much to think about on the why and how of doing so, which we will look forward to addressing on December 10.
Tenure and Academic Freedom Concerns
Teachers and professors have unique protections that can be tricky to navigate when processing Title IX complaints. Tenure for K-12 teachers and professors often makes termination seem unachievable. You also must apply your Title IX rules in a way that allows protections for academic freedom, free speech, and other rights. How do you navigate these minefields?
With respect to tenure, you keep calm and follow the rules. Remember that simply because it is difficult to terminate a tenured employee does not mean that you should throw up your hands and say, “Well, there’s nothing we can do.” Termination or other disciplinary action of a tenured professor can be pursued if appropriate. Remember, too, the mantra we all know and love when it comes to Title IX: Even if you can’t discipline a responding party there are still many other things you can do to address alleged misconduct by a tenured employee.
Similarly, with academic freedom and First Amendment concerns, because OCR has long said that Title IX does not reach curriculum or curricular materials or impinge on Free Speech rights, you must consider whether your investigation or response should be limited based on the rights of the responding party. We will talk through some examples and considerations during our webinar, but suffice it to say that although this consideration can involve a tricky analysis, it is possible to achieve the right result.
Whether in private practice or at OCR, I have seen time and time again the same scenario play out when an employee is responding to a sexual misconduct complaint. The employee is found “not responsible” for misconduct, has ongoing responsibilities to the student who is the complaining party (such as teaching or advising), and the employee fears that the student will just complain again if their interaction continues. So, what does the employee do? Cuts off or limits interaction with the student to “protect myself.”
What is the concern? Title IX prohibits retaliation, and that can (but does not always) include limitations on interactions after a complaint is done. It can be difficult for employees to understand that rebounding from complaints made in good faith comes with the territory of employment in schools and other workplaces. But rebuilding the relationship after a complaint is essential in many circumstances. We will discuss more about how to prevent retaliation while helping employees feel supported and protected in our webinar on December 10.
And More . . . .
During our webinar, we will address these and other issues, including the interplay between Title IX and its employment-law counterpart, Title VII; communication issues when employees are accused of sexual misconduct; and mandated reporting issues. You can register for the webinar here. We hope you can join us! Please comment on this post with any questions you would like us to try to address, or email them to email@example.com before the webinar. We would love to hear from you!
Last week, at an excellent and well-attended ATIXA conference at which I had the honor of speaking, ATIXA leadership reported hearing hints that the U.S. Department of Education intends to drop the new Title IX regulations at or near Thanksgiving. Why would they possibly do that? Because, as some speculate, we Americans are notoriously inattentive when we are stuffed with turkey and enjoying the company of our family and friends. If you’re going to release a cannonball of a regulation, the holidays are a great time to attempt to minimize the splash if ED wished to do so. Well, guess what? That prophecy looks like it might have some teeth. Continue Reading Ready Or Not, Here They Come? Title IX Regulations Inching Toward Publication
What do many of the highest-profile sexual assault cases in our country have in common? Whether it is the high-profile case involving a Stanford swimmer or the contentious Supreme Court confirmation hearings for Brett Kavanaugh, we have seen the evolving understanding of “consent” take center stage in many of the most notable recent cases.
Consent education has evolved over time from the rhetoric of “no means no,” with its focus on express refusal as a precursor to stopping sexual conduct, to “yes means yes,” which requires affirmative consent to continue with sexual activity. Advocates argue that sexual education around consent must reflect these changes and nuances.
In Illinois, legislators responded to this call by passing Public Act 101-0579 (which began as House Bill 3550) in late August. The law amends the School Code to require Illinois public schools that offer sex education in grades six through twelve to provide lessons on the issue of consent. Training under the law does not necessarily check all the boxes required by Title IX, however. Read on for key takeaways for school leaders.
My Partner Bill Pokorny and I are getting excited about our upcoming trip to the Bay Area for the 2019 ATIXA West Coast Annual Conference. We are particularly thrilled to have been asked to be featured speakers at the conference! We will present on Title IX Employee Rights: The Hidden Risks Every Administrator Should Know. Here is a summary of our presentation: Continue Reading ATIXA West Coast Conference Here We Come! Franczek Title IX Attorneys Featured Speakers at Upcoming Title IX Conference
The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students. Continue Reading Can a Transgender Female Student Compete on a Girls’ Sports Team? Supreme Court Justices Address the Question in LGBT Employment Case
With the start of the school year well underway and the many things to remember and think about that come with it, it can be easy to forget some of the most essential elements of Title IX compliance. For example, when is the last time you checked to ensure that employees who are involved in Title IX investigations are clearly identified and appropriately trained on the requirements of Title IX? We all assume these ducks are in a row, but we’ve seen OCR find issues with these responsibilities time and again in Title IX complaints. The real rub: even if you handled the specific complaint that led to an OCR investigation perfectly, if your notice and training requirements are lacking you might still find yourself staring down months or even years of OCR monitoring for a procedural violation. What can you do now to protect against that dreaded outcome? Continue Reading Recommended Trainings for Title IX Coordinators and Investigators
In our recent training on Title IX Foundations and Investigation Techniques here at Franczek P.C., we discussed that schools often use informal processes for certain types of sex discrimination complaints. Whether some concerns are less serious (verbal bullying versus sexual assault, for instance) or there are perceived benefits of having administrators familiar with a particular population of students conduct investigations (e.g., deans of students), there certainly are many conceivably appropriate reasons for having different paths for different types of Title IX complaints. From my experience investigating Title IX complaints at OCR, schools frequently do this and doing so does not always create a Title IX concern. But a recent court decision from the higher education context provides some important reminders for schools at all levels of best practices for such informal paths to Title IX compliance.
Continue Reading Recent Court Decision A Reminder of Need for Extra Care with Informal Title IX Processes
We were all anxiously expecting Title IX regulations in September, and yet here we are on October 1 with no sign of new regs in sight. Whether you are a newly appointed Title IX Coordinator or investigator looking for a quick primer on Title IX and your school’s responsibilities, a seasoned administrator wondering what OCR’s position is now on handling requests to keep sexual harassment reports confidential, or just confused about what guidance documents are still in effect at OCR, there is no better time for a refresher on what laws and guidance matter now for OCR investigations on Title IX. Here is a quick summary on what you should know and where to find it. Continue Reading So Much For Title IX Regs in September: A Quick Reference and Summary For the Meantime