Hand with garbage against full trash cans with rubbish bags overflowing onto the pavement.

The confusing messages coming from the U.S. Department of Education continue. We still await more information on if/when a final version of the pending Title IX regulations will be released. Those regulations have been almost universally described as rolling back Federal regulatory oversight in the Title IX realm for schools, colleges, and universities. Yet today, Secretary of Education Betsy DeVos announced a “New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools” that suggests elementary and secondary schools can expect an uptick in enforcement in this area starting today. The specific target: the purported uptick in elementary and secondary schools of the phenomenon known as “passing the trash.” This is where teachers who have engaged in sexual misconduct with a student or other minor are fired but allowed to find employment at another school. What can you expect from OCR in light of this initiative and what should K-12 schools do now to prepare? Continue Reading Garbage In, Garbage Out: ED Department Takes Aim at K-12 Schools “Passing the Trash”

With guest editor Kendra Yoch

As an Office for Civil Rights (OCR) investigator, I was surprised by the number of times I saw the same issues again and again in Title IX sexual misconduct investigations. Nowhere was this more evident than with confidentiality issues. Three of the most common repeat confidentiality concerns in Title IX investigations are the failure to adequately describe the impact confidentiality may have on an institution’s investigation, misunderstandings about the information that can be shared with a reporting party after resolution, and the assumption that OCR will not have access to identifying information during an investigation. Let’s unpack these mistakes so that you can avoid them in your next Title IX investigation. Continue Reading Learn From These Three Confidentiality Mistakes Before Your Next Title IX Investigation

TrackWith Guest Authors Jennifer Smith and Kendra Yoch

Litigants challenging the opening of women’s restrooms and locker rooms in schools to transgender females have roundly been defeated. While the Supreme Court could always change the trend, cases like Whitaker v. Kenosha Unified School District and Grimm v. Gloucester County School Board  show that it is increasingly settled that students and employees must have access to facilities consistent with their gender identities. Activist litigants, however, such as Alliance Defending Freedom (ADF), have turned their attention to a different issue: transgender athletes’ participation in women’s sports. Continue Reading The Next Mile in Gender Litigation: Transgender Participation in Women’s Sports

Open DoorThe U.S. Department of Education has created a “new, proactive” civil rights compliance center within its Office for Civil Rights. The Department describes the Outreach, Prevention, Education and Non-discrimination, or OPEN, Center as an effort to “support[ ] school districts, colleges, and those closest to students” by providing educational institutions “technical assistance to help them come into compliance with federal civil rights laws prior to the filing of a complaint.” Yet OCR retains the right to open “directed investigations” and “compliance reviews” against educational entities without a complaint; is there a risk that opening your doors to the OPEN Center could put you at risk of further OCR enforcement. Continue Reading Should You OPEN Your Institution’s Doors to OCR: New Civil Rights Office Raises Questions

I was honored to speak recently at the Illinois Association of School Personnel Administrators (IASPA) Thirteenth Annual Conference on January 23, 2020. Franczek P.C. is a longtime, proud sponsor of IASPA and was a Silver Sponsor of this year’s conference. I saw many familiar faces in the room and throughout the conference center.  My topic–Title IX Fundamentals for Personnel Administrators–is always a hot one, because for many in human resources Title IX is an afterthought until something goes wrong. The key takeaway from my presentation? “It shouldn’t be!” Continue Reading IASPA Annual Conference: Title IX Fundamentals for K-12 Personnel Administrators

Texas – road sign

We all know how important it is for responsible employees in educational institutions to report up the chain when they learn of sexual misconduct against a student. But the stakes for noncompliance just grew in Texas, where lawmakers recently passed legislation allowing jail time in addition to institutional penalties for responsible employees who fail to report as required by law. It seems like a good reason for a refresher on the rules for responsible employees and some tips for how to foster compliance at your institution, don’t you think? Continue Reading Jail Time for Responsible Employees Under Title IX? In Texas, Maybe

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. Continue Reading Title IX and Employee Rights: What Every K-12 and Higher Ed Title IX Coordinator Needs to Know

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