Recent court and OCR decisions regarding transgender students and employees reflect widely varying responses to the Biden administration’s efforts to expand protections for LGBTQ+ individuals under federal law, including Title IX. In January 2021, President Biden issued an executive order applying the Supreme Court’s decision in Bostock v. Clayton County to all federal laws prohibiting sex-based discrimination, clarifying that sex discrimination includes discrimination based on gender identity and sexual orientation. Continue Reading What’s the Future for Biden Administration Protections for LGBTQ+ Students and Employees under Title IX?
On July 18, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released its revised Case Processing Manual (CPM), which was last updated in August 2020. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws it enforces, including Title IX, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973. The revised manual contains several noteworthy changes schools and colleges should be aware of, including the following highlighted below.
Definition of “complaint”
- Defines “complaint” as “a written statement to the Department [of Education] alleging that the rights of one or more persons have been violated and requesting that the Department take action.”
- Expressly states that the following are not considered complaints: oral allegations, anonymous correspondence, courtesy copies of correspondence or a complaint filed or submitted somewhere else, and inquiries that seek advice/information but not action/intervention. Previously, OCR was permitted to determine on a case-by-case basis whether to process such correspondence or inquiries as a complaint.
- Clarifies that OCR may investigate Title IX complaints filed by employees as well as by students, parents, and applicants.
Franczek’s Education Law Team is pleased to offer Title IX Compliance training to prepare your team for the 2022-2023 school year. As our trainees have come to expect from the Franczek team, we will engage participants with the material through live polling, discussion, theoretical problems, and role-playing scenarios. If you are interested in Title IX training scheduled specifically for your school or district, please contact TitleIX@franczek.com.
As we discussed in a previous alert, the Biden administration recently released its proposed Title IX regulations. Today, the administration published the proposed regulations in the Federal Register, beginning the 60-day public comment period. Members of the public will have until September 12, 2022, to submit comments related to the proposed rules. Comments may be submitted to the Department of Education online at: regulations.gov.
As a reminder, the Biden administration’s rules are only proposals, meaning institutions should continue using their current policies and procedures under the 2020 rules, which are still in effect. In the meantime, feel free to reach out to us at TitleIX@franczek.com or any of our Title IX attorneys if you have questions.
You may have noticed while skimming through the new Title IX proposed regulations that there are now seemingly two grievance procedures to address Title IX complaints instead of one. You’ll recall that the current 2020 regulations—which, it should be noted, are still in effect—outline the grievance process for formal complaints of sexual harassment in § 106.45. In the proposed regulations, however, there are now two sections—§ 106.45 and § 106.46—governing grievance procedures for Title IX complaints. Why the split, and what’s the difference between the two processes, if any?
Today, the Biden administration released its highly anticipated proposed Title IX regulations on the 50th anniversary of the passage of Title IX. The unofficial draft of the proposed rule can be found here. The Department also released a fact sheet on the draft rule as well as the Department’s summary of the draft rule’s major provisions.
This week, we celebrate the 50th anniversary of Title IX, the landmark legislation signed into law on June 23 as part of the Education Amendments of 1972. Consisting of a mere 37 words—“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”—Title IX transformed the landscape of gender equity in education, expanding opportunities and ensuring fairness for women. We first saw Title IX make substantial changes in the realm of athletics, but it has since made significant strides in addressing sexual harassment on campuses across the country.
Earlier this year, we launched a multi-part series where we provide a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations soon, remember that the 2020 regulations are still in effect and will be for some time to come. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team. Now is a great time to identify who will serve in these roles for the upcoming school year and ensure those individuals have the necessary training.
For our final post in this series, we’re focusing our spotlight on the Title IX Advisor. Unlike the other Title IX roles that we’ve discussed in previous blog posts, there are no training requirements for advisors under the 2020 regulations. In fact, as we will discuss below, the advisor role can be filled by virtually anyone, including non-employees. However, we highly recommend that your school or college maintain a roster of trusted individuals who can fill in as advisors when needed and receive at least basic training in your Title IX policy and procedures.
The 7th Circuit Court of Appeals confirmed that school districts may only be liable for employee sexual misconduct when a school official has actual notice of the conduct. In C.S. v. Madison Metropolitan School District, the Court held that the Title IX obligations of a school district are limited in this regard. While various state laws impose additional requirements beyond Title IX for Illinois schools to respond to reported sexual misconduct by a school employee, this case provides important guideposts for when school districts may be subject to liability for monetary damages under Title IX.
In this case, a middle school student alleged a school security assistant sexually abused her throughout her eighth-grade year. There was no evidence that anyone witnessed the misconduct, and the student did not report the abuse until August 2014, when she was in high school. The Court noted that “if eighth grade were the whole story, it is clear that [the security assistant’s] alleged abuse, even if proven, could not give rise to liability for the school district” because the school had no knowledge, actual or otherwise, of the abuse.
In March, the U.S. District Court of the Western District of Washington ruled against a school district in favor of a student with intellectual disabilities, who was awarded $500,000 by a jury based on the district’s failure to address repeated acts of peer sexual harassment against the student. In the lawsuit, the plaintiff alleged that the school district violated the student’s due process and equal protection rights, violated Title IX, violated the Washington Law against Discrimination, and was negligent. The jury returned a verdict in favor of the plaintiff on her due process, equal protection, and negligence claims, and the court denied the district’s motion to set the verdict aside.
The case, Berg v. Bethel School District, is instructive on a range of issues relating to sexual misconduct involving students with disabilities, including a school district’s duty to protect a student with disabilities from sexual harassment even when the student does not explicitly object to the misconduct.