As we’re nearing the end of the calendar year, many of you may be wondering where things stand with the Biden Administration’s proposed Title IX regulations. As we previously reported on this blog, the proposed Title IX rule would significantly revise the Trump administration’s 2020 rule, including by clarifying that Title IX protects individuals on the basis of sexual orientation, gender identity, and sex characteristics; broadening the definition of sex-based harassment; broadening the jurisdiction of institutions to address off-campus harassment; expanding the rights of pregnant and parenting students and employees; and making the live hearing and cross-examination requirement optional.
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Title IX Protections for Pregnancy after Overturning of Roe v. Wade
The Biden Administration has recently taken steps through agency guidance, rulemaking and decision-making to highlight protections for students and employees with pregnancy-related conditions, including abortion, under the umbrella of Title IX. Against the backdrop of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization this past June overturning the 1973 ruling Roe v. Wade, which established a constitutional right to abortion, these recent actions by the Department of Education’s Office for Civil Rights (OCR) provide reminders to educational institutions that Title IX continues to guarantee certain protections under federal law for students and employees based on pregnancy and related conditions, including the termination of pregnancy.
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New Staff or New Roles? Franczek P.C. Offers Title IX Training for K-12 Administrators
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.
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Two Grievance Procedures in the New Title IX Proposed Regs?
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?
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Biden Administration Releases New Proposed Title IX Regulations
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.
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Celebrating the 50th Anniversary of Title IX
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.
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Title IX Refresher Series Part V: Title IX Advisor
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. Continue Reading Title IX Refresher Series Part V: Title IX Advisor
When School Districts Are Liable for Employee-Student Sexual Abuse under Title IX
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. Continue Reading When School Districts Are Liable for Employee-Student Sexual Abuse under Title IX
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 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
Title IX Refresher Series Part IV: Title IX Informal Resolution Facilitator
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