Photo of Jackie Gharapour Wernz

Attorney representing educational institutions in a wide range of education and employment law matters.

Yesterday, the United States Supreme Court heard oral argument in its first case ever to address the discipline of students for speech occurring off-campus, on their own time, and online. The argument focused on what test should apply, the fate of political and religious speech under the proposed standards, whether schools can impose additional limits through extracurricular and athletic codes of conduct, and if the student in the specific case was too harshly disciplined for the speech in question. 

A majority of the Court’s Justices appeared prepared to overturn the lower court decision, which had held that the longstanding “substantial disruption” test does not apply to off-campus student speech. A majority also struggled with whether—and, if so, how—to refine or replace that test with something clearer. Indeed, most seemed to lean toward deciding the case narrowly, finding that even if the substantial disruption test applies, the school did not meet it in this case. Such a decision would fail to provide school officials long-sought-after guidance on the bounds of their jurisdiction to address off-campus speech. Even though, as one of the attorneys noted, the “Court has not had a Tinker decision since Tinker,” there is a real chance that schools may have to wait decades more to get guidance from the highest court on this significant issue. 
Continue Reading United States Supreme Court Hears Argument in Historic Student Speech Case 

Paper tear background with word Complaints.

It’s an all-too-common scenario these days: Students  report sexual misconduct perpetrated against other, often unnamed students. They post anonymously on Instagram. They hang letters on walls or post complaints on bulletin boards. They hold protests and speak out at board meetings. Often, the allegations are nothing more than vague references to harassment and mishandling of reports by the institution. Our Title IX Decision Tree walks you through various decision steps of the Title IX process, including those related to bystander and anonymous complaints. We also have a free flowchart that addresses responding to bystander and anonymous complaints; email me at jw@franczek.com to request a copy. For more on how to respond to bystander and anonymous sexual harassment reports under Title IX, keep reading here.
Continue Reading Responding to Bystander and Anonymous Sexual Harassment Complaints

Today, President Joe Biden issued an executive order addressing Title IX, entitled Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Unfortunately, the order sheds little light on how the Biden administration intends to change Title IX and, as a result, warrants little practical change for schools, colleges, and universities. The order directs the new Secretary of Education, Miguel Cardona, to “consider” suspending, revising, or rescinding the 2020 Title IX rule, but does not actually take any action with respect to the Trump-era rule. Similarly, it directs Cardona to issue “new guidance” interpreting the rules, but does not provide any actual guidance now. Perhaps the most interesting part of the order is language directing Cardona to consider “additional enforcement actions” to enforce the new administration’s position on Title IX. Does that mean that the Office for Civil Rights will begin taking a different position when investigating Title IX complaints, even before new guidance or rules are issued? As we have discussed before, the most reasonable approach for educational institutions now is to stay the course, implementing the 2020 Title IX rules as written, unless and until the Department says otherwise. Even then, schools, colleges, and universities will need to assess whether new guidance or direction from the Department will adequately protect institutions from legal challenges from those who may prefer the 2020 rules. Because of the statement in the order, however, schools, colleges, and universities should work closely with counsel when they receive a request or internal complaint involving sex-based issues. This is particularly true with respect to LGBTQ+ issues, upon which the Department has taken more concrete policy actions to date.
Continue Reading Biden’s Executive Order on Title IX Warrants Little Practical Change for Schools

We have been speculating for quite some time now about what the U.S. Supreme Court will do with Title IX after its decision last term in Bostock v. Clayton County, Georgia. The landmark Bostock decision held that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation and transgender status in the workplace. Although the Justices discussed Title IX in the oral argument and decision in Bostock, because of differences between employment laws and Title IX, many questions remained unanswered. A school district’s recent request that the Supreme Court hear a case involving transgender student access to bathroom facilities offers the high court a chance to answer many of the lingering, important questions. The case is one of the longest-running LGBTQ school cases in the country; the Supreme Court has even heard it once before. Here’s what you need to know now about the case and the request to the Supreme Court.

Continue Reading Supreme Court Asked to Give Schools Much-Needed Guidance on Title IX and Transgender Rights

President Joseph Biden has been in office for over three weeks, bringing more changes in the realm of Title IX. Where are we now, what do we need to know and do, and what is expected to come? This is the second part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration, and what they mean for school leaders under Title IX. (Find part one here).

Our topic today is diversity, equity, and inclusion in schools, colleges, and universities. This is an important topic under Title IX because DEI initiatives include those supporting LGBTQ students and employees and other sex-based topics. Although the Biden administration has rolled back the most controversial of the Trump team’s orders with respect to DEI initiatives, schools, colleges, and universities should still be cognizant of the potential for lawsuits from private parties who disagree with DEI initiatives. Those challenges should not prevent schools, colleges, and universities from continuing important DEI work, but educational institutions should work closely with legal counsel to craft such programs in the most legally defensible ways.

Part 2: DEI Initiatives in Schools, Colleges, and Universities under Biden

In late 2020, then-President Donald Trump signed an Executive Order attacking what the order described as “anti-American race and sex stereotyping and scapegoating” by federal contractors and recipients of federal grant funds, including schools, colleges, and universities. The order addressed racial and sex sensitivity trainings in employment and in schools. What was the action and what changes have we seen with respect to this issue in the first few weeks of the Biden administration?


Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 2

At the beginning of last week, Donald Trump was President of the United States and we were being flooded with last minute Title IX and civil rights guidance from the outgoing Department of Education. As we near the end of the week, Joseph Biden is President and we are digesting a long list of senior political appointees for the department and executive orders signaling a reversal on approaches to racial and LGBTQ equality within federal agencies. Where we are now, what do you need to know and do, and what is expected to come? This is the first part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration and what they mean for school leaders under Title IX.

Part 1: Title IX and Gender Identity and Sexual Orientation After Bostock

Anyone keeping watch on the Department of Education’s actions in the past few weeks knows that the outgoing administration did not intend to go quietly into the night. Instead, we saw a flurry of guidance and other documents issued up to the very final moments of the administration in the realms of civil rights and Title IX. An important example was a  January 8, 2021 memorandum from the Department’s Office of General Counsel stating that LGBTQ students are not covered by Title IX.


Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 1

In 2017, a high school cheerleader learned she had not made the varsity team and turned to Snapchat. She posted a picture of herself and a friend, middle fingers up, with the text “f— school f— softball f— cheer f— everything.” She was subsequently suspended from the Junior Varsity cheer team. Little did she know that her frustrated message would lead to the first U.S. Supreme Court case to address the limits of school discipline for student off-campus, online speech.

Yet, last Friday, the Supreme Court decided to hear the student’s challenge to the school’s discipline for her Snapchat post. I have been writing about the scope of K-12 schools’ authority to discipline students for off-campus, online misconduct for a long time. The Supreme Court has long refused to take on similar cases, despite pleas from administrators for better guidance on their rights. The result is that courts have reached different decisions in different parts of the country, making it even more challenging for schools to apply the standards correctly.

It is exciting to think that the Supreme Court may finally give direction to educators on this issue. Hopefully, they will answer important questions like whether the Tinker standard for substantial disruption applies to off-campus online misconduct and what, if any, nexus is required to impose discipline.

What should school leaders do about this issue now? School leaders in most jurisdictions should wait on the Court’s decision before making any changes to policies and procedures. Those of us who advise K-12 schools know how important the authority to discipline for off-campus, online speech can be to maintaining order in a school building and hope that the Supreme Court will agree. Until then, it is more important than ever to reach out to legal counsel for assistance in understanding what, if any, discipline can be imposed for off-campus, online incidents, including those involving Title IX. Keep reading this post for more insight and analysis of this important decision.
Continue Reading Supreme Court (Finally) Will Address School Discipline for Off-Campus, Online Student Speech

wish listIn recent weeks, I have been lucky enough to be involved in the conversation about what changes the Biden administration should make under Title IX. In addition to informal discussions with colleagues, administrators, and associations, Real Clear Investigations interviewed me for a recent piece. I discussed the pressure that many schools felt under the Obama administration as one reason the Biden team should not simply return us to the Title IX guidance of that era.

Most conversations, including the Real Clear Investigations interview and article, focus primarily on Title IX and higher education. To some extent, that makes sense. There are more Title IX incidents in higher ed. Colleges and universities have and dedicate more resources toward the process. The highest-profile cases of mishandled complaints are from the higher ed space.

But K-12 administrators have been working hard since May 6, 2020, to implement the new Title IX regulations. They are already feeling the real impacts of the new rules in the schoolhouse (whether in-person, hybrid, or virtual). I have trained thousands of administrators during the summer and fall and helped countless others write policies and respond to complaints under the new rules. I have heard time and again how much in the 2020 rules are not workable for K-12 schools. If K-12 administrators had a wish list for the Biden transition team regarding their genuine and unique concerns, what might it be? Here are the top three considerations as I see them.


Continue Reading A K-12 Holiday Wish List for The Next “New” Title IX