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 

Continue Reading Can a School District Be Liable for Student-on-Student Sexual Harassment Even When a Student Does Not Explicitly Object? Federal District Court Says Yes

In February, we launched a multi-part series in which 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, remember that the 2020 regulations are still in effect and will be for some time. 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. 

Today, we focus our spotlight on the Title IX Informal Resolution Facilitator. The 2020 regulations permit institutions to facilitate an informal resolution process between parties involved in a Title IX grievance. The regulations briefly define the informal resolution as a “process, such as mediation, that does not involve a full investigation and adjudication.” There are several key timelines and requirements for the informal process, including the following: 

  • An informal resolution process can only take place after a formal complaint is filed. 
  • An institution may facilitate the informal process at any time prior to reaching a determination regarding responsibility. After a final determination, however, the institution is not permitted to conduct an informal resolution with the parties.  
  • The institution must provide the parties a written notice that relays 1) the allegations, 2) the requirements of the informal resolution process, and 3) any consequences resulting from participation in the informal process, including any records that will be maintained or shared. 
  • Both parties must consent to the informal resolution through voluntary, written consent.  
  • At any time, any party has the right to withdraw from the informal process and resume the grievance process with respect to the formal complaint.  
  • The informal process should take place within a reasonably prompt time frame.  
  • The informal process is not permitted to resolve allegations in which an employee sexually harassed a student. 
  • An institution may not require a party to undergo the informal resolution process and waive their right to a formal Title IX investigation and adjudication as a condition of enrollment, employment, or any other right. 

Continue Reading Title IX Refresher Series Part IV: Title IX Informal Resolution Facilitator

In March, President Biden signed into law the Violence against Women Act Reauthorization Act of 2022 (VAWA), which Congress passed as part of the FY22 Omnibus appropriations bill. First passed in 1994 and reauthorized in 2000, 2005, 2013, and now 2022, VAWA is aimed at addressing sexual assault and other forms of gender-based violence by expanding access to safety and support for survivors and increasing community-wide prevention efforts. This latest reauthorization of VAWA contains several new measures and revised or new definitions that schools and colleges should be aware of and, if needed, be prepared to implement into their policies and procedures. In this post, we will provide an in-depth overview of VAWA updates that may be relevant to your institution. 

Broadly, the 2022 VAWA reauthorizes all current VAWA grant programs until 2027; expands services and support for survivors of gender-based violence from underserved and marginalized communities, including LGBTQ+ survivors and those in rural communities; expands the criminal jurisdiction of tribal courts over non-Native perpetrators; establishes a federal civil cause of action for victims of cybercrimes; and—crucially for educational institutions—expands prevention education programs and grants for students in K-12 and higher ed. All provisions in the reauthorized VAWA are effective October 1, 2022, unless otherwise provided. 

Continue Reading VAWA Reauthorized: What Does This Mean for Your School or College?

We recently launched a multi-part series where we are providing 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. 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. 

Today, we’re focusing our spotlight on the Title IX Decision-Maker. With the live hearing requirement for colleges and universities under the 2020 regulations, Decision-Makers play key roles in the formal grievance and appeals processes. The regulations outline three stages in which Decision-Makers play a primary role: the live hearing, the written determination, and the appeal. (Decision-Makers have slightly different responsibilities in the K-12 process, which we will also cover below.) 

Continue Reading Title IX Refresher Series Part III: Title IX Decision-Maker

We recently launched a multi-part series where we are providing a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to publicly release their proposed regulations, 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. 

In a previous post, we covered the roles and responsibilities of the Title IX Coordinator. Today, we’re focusing our spotlight on the Title IX Investigator. As you know, Title IX Investigators play a crucial role in your institution’s formal grievance process. Investigators are responsible for conducting fair and unbiased investigations and creating thorough investigation reports summarizing all relevant evidence that will help Decision-Makers make final determinations.  

Continue Reading Title IX Refresher Series Part II: The Title IX Investigator

In December, the Biden Administration announced that it plans to release new Title IX draft rules to the public by April 2022. (See our previous post on the announcement here.) Last week, the Department of Education Office for Civil Rights (OCR) provided an update on the latest step in this process.  

On Friday, OCR reported on its blog that the Department of Education sent the draft of the proposed Title IX amendments to the Office of Information and Regulatory Affairs (OIRA). At this stage, the draft amendments—known as a Notice of Proposed Rulemaking (NPRM)—are not yet available for public viewing. An internal review will be conducted by OIRA and the Department of Justice to analyze the costs and benefits of the proposed rules. Following the internal review process, the Department of Education will publish the draft rules in the Federal Register, where members of the public will have the opportunity to submit their comments on the proposed regulations. While the FAQs on the OIRA review process state that the process may take up to 90 days, the Department of Education may still be on track to issue the proposed amendments in April depending on how long the OIRA review takes.  

Continue Reading OCR Provides Update on Rulemaking Process for Title IX

In a highly anticipated decision earlier this month, OCR reaffirmed the broad discretion that religious institutions may have under the religious exemption in Title IX.  

Title IX provides that “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.” However, Title IX allows religious educational institutions, including those accepting federal funds, to claim a religious exemption to the extent that an application of a Title IX provision is inconsistent with the tenets of the religious organization that “controls” the institution.  

Continue Reading OCR Dismisses LGBTQ+ Complaint Based on Title IX Religious Exemption

In January, the U.S. Court of Appeals for the Third Circuit affirmed that Title IX provides adequate notice to federal funding recipients of their responsibility to respond to known sexual harassment if they have control over the context and harasser, even when the harasser is a third party 

The Court of Appeals ruled that Millersville University, a public institution in Pennsylvania, could be liable for deliberate indifference to known sexual harassment by a non-student guest. The case arose from the murder of a female student in her dorm room by her non-student boyfriend. The non-student’s months-long pattern of abusive behavior leading up to the murder was well-known and reported to individuals on campus who had some authority to take corrective action, including a campus police officer who failed to file an incident report involving the non-student until after the student’s murder. While the Deputy and Area Title IX Coordinators received actual notice, they did not forward any of the reports to the Title IX Coordinator as required by their policy.  

Continue Reading Third Circuit Finds that Deliberate Indifference to Third-Party Conduct May Lead to Title IX Liability

As we noted in our last blog post, the Biden administration recently announced plans to propose amendments to the Title IX regulations by April 2022. While this deadline is fast approaching, before you start thinking about changing your policies and procedures, remember that the Trump administration’s 2020 regulations are still in full effect and will continue to be for the time being. 

With that in mind, we are launching a multi-part series where we’ll be providing a refresher on the key players on your Title IX team under the current 2020 regulations. Over the next several posts, we’ll highlight the roles and responsibilities of Title IX Coordinators, Investigators, Decision-Makers (Complaint and Appeal), Informal Resolution Facilitators, and Advisors, reviewing legal requirements and sharing practical tips and lessons that we’ve learned in the field. 

Continue Reading New Title IX Series: Refresher on the Roles and Responsibilities of Your Title IX Team