Recent court and OCR decisions regarding transgender students and employees reflect widely varying responses to the Biden administration’s efforts to expand protections for LGBTQ+ individuals under federal law, including Title IX. In January 2021, President Biden issued an executive order applying the Supreme Court’s decision in Bostock v. Clayton County to all federal laws prohibiting sex-based discrimination, clarifying that sex discrimination includes discrimination based on gender identity and sexual orientation. 
Continue Reading What’s the Future for Biden Administration Protections for LGBTQ+ Students and Employees under Title IX?

On July 18, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released its revised Case Processing Manual (CPM), which was last updated in August 2020. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws it enforces, including Title IX, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973. The revised manual contains several noteworthy changes schools and colleges should be aware of, including the following highlighted below. 

Definition of “complaint” 

  • Defines “complaint” as “a written statement to the Department [of Education] alleging that the rights of one or more persons have been violated and requesting that the Department take action.” 
  • Expressly states that the following are not considered complaints: oral allegations, anonymous correspondence, courtesy copies of correspondence or a complaint filed or submitted somewhere else, and inquiries that seek advice/information but not action/intervention. Previously, OCR was permitted to determine on a case-by-case basis whether to process such correspondence or inquiries as a complaint. 
  • Clarifies that OCR may investigate Title IX complaints filed by employees as well as by students, parents, and applicants. 


Continue Reading OCR Releases Revised Case Processing Manual with New Updates to Complaint Process

As we discussed in a previous alert, the Biden administration recently released its proposed Title IX regulations. Today, the administration published the proposed regulations in the Federal Register, beginning the 60-day public comment period. Members of the public will have until September 12, 2022, to submit comments related to the proposed rules. Comments may

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.  

Continue Reading Biden Administration Releases New Proposed Title IX Regulations

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 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 a presidential candidate, now-President Biden promised that he would put a “quick end” to the Trump administration’s 2020 Title IX rules. Aiming to keep that promise, the Department of Education announced  its intention to release proposed amendments to Title IX’s implementing regulations by April 2022, a month earlier than initially expected. While the April 2022 date is not binding, it signals the Biden administration’s intent to start the lengthy rulemaking process as soon as possible.  
Continue Reading Biden Administration to Propose New Title IX Rules by April 2022

The U.S. Department of Education’s Office for Civil Rights, or OCR, recently issued a Notice of Interpretation stating that Title IX of the Education Amendments of 1972 prohibits discrimination against LGBTQ+ students and employees in public schools, colleges, universities, and other recipients of Department funds. This would not necessarily be big news, because the United States Supreme Court recently recognized similar rights for employees under Title IX’s sister statute, Title VII of the Civil Rights Act of 1964. But it is news for schools. It’s the next chapter in OCR’s ever-changing position on this important question (from vigorous enforcement under the Obama administration to the Trump administration’s flip-flop in 2017 and subsequent clarification after Bostock in 2020). And although the information ED released answered some questions, many important questions remain.
Continue Reading Unanswered Questions on OCR’s About-Face on Transgender Rights