As we explained in an earlier blog post, one of the requirements of the new Title IX regulations–the mandate to post all materials used to train Title IX personnel on a school’s website–has understandably raised questions for K-12 and higher education institutions regarding copyright compliance. Today, I was thrilled to host Ashly Boesche, a Partner at the Chicago intellectual property boutique powerhouse Pattishall McAuliffe. Drawing on her expertise in the area of copyright law, Ashly shed some light on this question. The video is available below, and the audio will also be published through our Education Law Insights podcast, which you can find wherever you get your podcasts.

Almost one-and-a-half years after releasing its proposed rule, the U.S. Department of Education issued new Title IX regulations on May 6, 2020. Because the 2020 Title IX regulations become effective on August 14, 2020, educational institutions must move quickly to come into compliance during what are already particularly trying times. To assist your institution with coming into compliance, we Franczek’s Title IX team is offering the following products and services to school districts, schools, colleges, universities, and community colleges:

  • Title IX Toolkit. Our Title IX Toolkit contains the written documents needed to bring your institution into compliance, including a compliance action plan, notices, forms, and letters, and insights and analysis of the Illinois PRESS policy when it is released. Toolkit subscribers will also receive access to an exclusive webinar addressing Toolkit and PRESS policy customization.
  • Training. The 2020 Title IX regulations for the first time require specific training for school and school district employees, including Title IX Coordinators, investigators/administrators, decisionmakers, and mediators. Because the rules require K-12 schools to respond to sexual harassment reports and complaints if any employee has actual knowledge of the harassment, it is also essential that all K-12 staff receive basic training so that they can report it as required. Our interactive, engaging, customized trainings—offered both in person and online using videoconferencing—meet all requirements under the new rules.
  • Investigations, Determinations, and Informal Resolution. Many educational institutions will have in-house investigators to investigate claims, decision-makers to decide complaints and appeals, and facilitators to handle informal resolutions. In some cases, staffing and training limitations, conflicts of interest, and even the sensitive nature of allegations may necessitate looking outside an institution’s walls for an investigator, decisionmaker, or facilitator. When they do, Franczek P.C.’s experienced, trained attorneys are available to assist.

For more information on the Title IX services we provide, please email us at titleix@franczek.com. We also offer summaries of our Title IX resources for PreK-12 schools and higher education institutions on our website. And, as always, for the most up to date discussions about the impact of Title IX on your institution, follow our titleIXinsights.com blog.

Come join us to unwind Title IX while also unwinding with colleagues and friends!

We know the challenges facing administrators responsible for Title IX compliance at the K-12 level, with the August 14 effective date for the new Title IX rules looming. We also know that collaboration with other K-12 Title IX administrators, though indispensable, can be challenging during these days of remote working. To address these challenges, Franczek P.C. invites you to join us for the first meetup of the Illinois K-12 Title IX T.E.A.M. (Title IX Educational Administrators Meetup). This meetup will be an informal chance to get to know other colleagues engaged in this work while also discussing the key challenges your institution is facing with respect to coming into compliance with the new regulations.

Who: Illinois K-12 administrators with any role in implementing the new Title IX regulations at their schools or districts.

When: The Illinois K-12 Title IX T.E.A.M. will meet on Thursdays at 4 p.m. via Zoom.

Where: Register using this link. After registering, you will receive a confirmation email containing information about joining the meeting.

REGISTER HERE!
July 21, 2020 at 11:30 a.m. – 12:45 p.m. CT

In this session of Ankura’s monthly Title IX and Civil Rights Investigations webinar series, Dan Schorr and Alyssa-Rae McGinn will be joined by Franczek P.C. partner Jackie Gharapour Wernz for a discussion of the important issues related to complainant and respondent advisors in Title IX investigations. Topics will include the role of the advisor during an investigation or hearing, the impact of the Department of Education’s new Title IX regulations on this role, who should serve as an advisor, how to address advisors who are disrupting an investigation or hearing, and the advisor’s role in cross-examination. The webinar will also examine how the role of an advisor differs in K-12 vs. higher education processes.

As external investigators working with educational institutions and other organizations, the presenters will draw upon experience investigating reports of sexual misconduct, intimate partner violence, and gender-based and racial harassment involving students, faculty, and staff to discuss relevant legal requirements and policy considerations while responding to your questions and comments. The webinar will incorporate the latest requirements and guidance from the Department of Education’s new Title IX regulations.

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.

Continue Reading Six Weeks to the New Title IX: Here’s How Your Institution Can Meet the Deadline

ostrich head in sandFor 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

Although some suggest that the Title IX rules issued earlier this month are a boon for schools, colleges, and universities, those of us working to help schools comply with the new rules know that they are anything but a blessing to educational institutions. Among the many prescriptive and confusing measures that will reign when the rules become effective on August 14, schools will be required to comply with numerous detailed procedural requirements to respond to a “formal complaint” of sexual harassment. The rules limit the ways in which a formal complaint can be initiated. Specifically, only an alleged victim of sexual harassment (a “complainant”) can “file” a formal complaint, which must be written. But a Title IX Coordinator also has the authority to “sign” a formal, written complaint. Either path initiates the formal complaint process required by the rules. Because OCR has made clear that it will scrutinize the decision to sign a complaint under the same standards as it will any other portion of an institution’s response to sexual harassment, schools, colleges, and universities must ensure they understand what factors a Title IX Coordinator should consider—and those they absolutely should not—when deciding whether to sign a formal complaint under the new rules.

Continue Reading A “Sign” of Things to Come: Title IX Coordinators and “Signing” Complaints

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