Photo of Jackie Gharapour Wernz

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

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

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

One of the biggest changes from the new Title IX regulations issued by the Department of Education last week is that, beginning in August 2020, OCR’s complaint findings will be based on standards very similar to those used by federal courts for decades in lawsuits for money damages under Title IX. The U.S. Supreme Court set forth the standards in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Those cases included the fundamental ideas that have now been codified—in modified form—in the Department’s final rule, such as the ideas that a school can only be responsible for sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”; when it exercises “substantial control” over the harasser and the “context” of harassment; and when it has “actual knowledge” of the sexual harassment. These cases also are the root of the “deliberately indifferent” standard that OCR will now use to decide if a school has violated Title IX. What do these standards mean, and what lessons can your institution learn from the court cases in which they were created and fleshed out over the past two decades?
Continue Reading Why Your Next OCR Title IX Complaint May Feel Like A Lawsuit

As we discussed in our blog post on May 6, 2020, the U.S. Department of Education issued on that day its long-awaited Title IX regulations, raising panic and concern amongst stakeholders on every part of the Title IX spectrum. Our Title IX Insights blog team provided some initial thoughts on the new regulations during a webinar on May 11; you can watch the recording here. This blog post answers some of the questions we raised during the webinar as well as some questions we received from the audience but did not have time to address. For more on the details about the final rule, check out the webinar recording and stay tuned to our blog for more insights to come.
Continue Reading 9 for IX: Nine Essential Questions Answered About the New Title IX

After almost one-and-a-half years since issuing its original proposed rule, the U.S. Department of Education has issued final Title IX regulations effective August 14, 2020. Although analyzing the changes will take some time, what follows is a brief initial summary of some of the main changes in the final rule. Please join us for a complimentary webinar breaking down the new rule on Monday, May 11, 2020, at 11:30 a.m. We will be working on providing you more insights, as well, in the coming days.
Continue Reading They’re Finally Here: U.S. Department of Education Issues Title IX Regulations

Despite efforts by schools and advocacy organizations, state attorneys general, and members of Congress and the Senate, the Department of Education’s proposed Title IX rules reportedly have cleared Office of Management and Budget (OMB) review and sources say that the final rules are coming—soon. Although the timing of the release during the coronavirus disease 2019 (COVID-19) crisis is far from ideal, employees with Title IX responsibilities may be able to use some of the well-documented time lost in productivity on normal day-to-day tasks during this crisis to prepare for the coming changes. In addition to signing up for our Franczek blogs and alerts so that you can receive our insights on the rules if and when they are released, we recommend that schools, colleges, and universities do the following four tasks now to prepare for the impending regulatory changes.
Continue Reading Lemons into Lemonade: 4 Coronavirus Shutdown Tasks to Prepare for Title IX Rules

Cyberbullying is nothing new. A majority of teens have experienced the phenomenon and college campuses certainly are not immune. Just because something is common does not make it simple to deal with, however. And this is especially true with cyberbullying when it is sex-based, because the complications of Title IX come into play. What are the key Title IX requirements to keep in mind when faced with a sex-based cyberbullying complaint?
Continue Reading Do Virtual Sticks and Stones Also Break Bones? Addressing Cyberbullying Under Title IX

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