Photo of Jackie Gharapour Wernz

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

Last week, at an excellent and well-attended ATIXA conference at which I had the honor of speaking, ATIXA leadership reported hearing hints that the U.S. Department of Education intends to drop the new Title IX regulations at or near Thanksgiving. Why would they possibly do that? Because, as some speculate, we Americans are notoriously inattentive when we are stuffed with turkey and enjoying the company of our family and friends. If you’re going to release a cannonball of a regulation, the holidays are a great time to attempt to minimize the splash if ED wished to do so. Well, guess what? That prophecy looks like it might have some teeth.
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What do many of the highest-profile sexual assault cases in our country have in common? Whether it is the high-profile case involving a Stanford swimmer or the contentious Supreme Court confirmation hearings for Brett Kavanaugh, we have seen the evolving understanding of “consent” take center stage in many of the most notable recent cases.

Consent education has evolved over time from the rhetoric of “no means no,” with its focus on express refusal as a precursor to stopping sexual conduct, to “yes means yes,” which requires affirmative consent to continue with sexual activity. Advocates argue that sexual education around consent must reflect these changes and nuances.

In Illinois, legislators responded to this call by passing Public Act 101-0579 (which began as House Bill 3550) in late August. The law amends the School Code to require Illinois public schools that offer sex education in grades six through twelve to provide lessons on the issue of consent. Training under the law does not necessarily check all the boxes required by Title IX, however. Read on for key takeaways for school leaders.


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My Partner Bill Pokorny and I are getting excited about our upcoming trip to the Bay Area for the 2019 ATIXA West Coast Annual Conference. We are particularly thrilled to have been asked to be featured speakers at the conference! We will present on Title IX Employee Rights: The Hidden Risks Every Administrator Should Know. Here is a summary of our presentation: 
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The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students.
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In our recent training on Title IX Foundations and Investigation Techniques here at Franczek P.C., we discussed that schools often use informal processes for certain types of sex discrimination complaints. Whether some concerns are less serious (verbal bullying versus sexual assault, for instance) or there are perceived benefits of having administrators familiar with a particular population of students conduct investigations (e.g., deans of students), there certainly are many conceivably appropriate reasons for having different paths for different types of Title IX complaints. From my experience investigating Title IX complaints at OCR, schools frequently do this and doing so does not always create a Title IX concern. But a recent court decision from the higher education context provides some important reminders for schools at all levels of best practices for such informal paths to Title IX compliance.

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